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fRAVi^
HISTORY AND DIGEST
OF THB
INTERNATIONAL ARBITRATIONS TO
: WHICH THE UNITED STATES
HAS BEEN A PARTY,
TOGBTHBR WITH * •
v?
APPENDICES CONTAINING THE TREATIES RELATING TO SUCH
ARBITRATIONS, AND HISTORICAL AND LEGAL NOTES ON
OTHER INTERNATIONAL ARBITRATIONS ANCIENT AND
MODERN, AND ON THE DOMESTIC COMMISSIONS
OF THE UNITED STATES hOR THE ADJUST-
MENT OF INTERNATIONAL CLAIMS.
BY
JOHN BASSETT ^ORE,
HamUton Fish Piro/essor of fntemational Law and Diplomacy^ Columbia University^
New York; Associate of the Institute of International Law; sometime Assist-
ant Secretary of State of the United States; author of a work on
Exiradition and Interstate Rendition, of American
Notes on the Conflict of Laws^ etc.
IN SIX VOI^UNISS.
Volume IV.
WASHINGTON :
GOVERNMENT PRINTING OFFICE.
1898.
CHAPTER l.IX.
ARREST, IMPRISONMENT, AND J)ETENTION.
1. By Civil Authority.
In 1824 Dr. John Baldwin, a citizen of* the
^ titi^^^*" ^*^^^' ^"^^^^ States, purcbjised a league of land on
the river Ooatzacoalcos, south of the port of
Vera Cruz, Mexico, and established there a settlement, to
which was given the njime of Minatitlan. He opened a house
for the sale of merchandise and built a number of sawmills,
and for a time was prosperous. In 1827, however, one Tadeo
Ortiz came to the colony as commissioner, with extensive pow-
ers. Upon his arrival he and Dr. Baldwin became involved in
difliculties. One of their early controversies seems to have
arisen out of a demand which Dr. Baklwin made ui)on Ortiz
for payment for lumber purchased for the use of the public in
building a church and a government house. The quarrel hav-
ing begun, Ortiz emjdoyed his political power for purposes of
persecution and opi)ression. The prox)erty and effects of Dr.
Baldwin were sequestered under an order issued by Ortiz, who
also decreed his exi)ulsion from the colony. Subsequently,
Ortiz directed certain judicial proceedings to be undertaken.
These proceedings were set on foot by a letter which Ortiz
addressed to one Moutalvo, a person in his employ and con-
stituted by him an alcalde for the occasion, ordering him to
institute an action against Dr. Baldwin. This letter charged
Dr. Baldwin with want of respect to the authorities, with
robbing the state of timber, with being a smuggler, and with
litigious conduct. Montalvo instituted the action and took
certain alleged dejiositions, which were afterward declared to
be fraudulent, and entitled the .action as a proceeding ordered
to be institute<l by the commissioner, Tadeo Ortiz, against the
foreigner John Baldwin, accused of '* various crimes." One of
5627— VOL. 4 1 ^^'^
3236 INTERNATIONAL ARBITRATIONS.
the depositions charged that Dr. Baldwin bad broken a con-
tract with certain laborers whom he had imported; another,
that he had refused to pay a certain person for the pasturage
of cattle; another, that he had once given a customs guard on
one of his vessels some liquor, so that the guard went to sleep,
from which it was inferred that Dr. Baldwin had put opium
into the liquor to put the guard to sleep in order that he himself
might smuggle. Another deponent was reported to have sworn
that on a certain occasion, when he went on Baldwin's land to
shoot wild hogs, the latter ordered him off and tlireatened to
kill him if he returned. Another deposition, by Ortiz's secre-
tary, accused Baldwin of cutting timber on government land.
Other depositions referred to a certain cargo of corn, which
Baldwin alleged that he imported and offered for sale at a small
price, at the request of the authorities, wlien the colony was in
a needy condition, and which he alleged that the customs offi-
cials had seized when it was imported, and sold at a high
price to the people.
Ortiz sent a record of the proceedings against Baldwin to
the governor of the State of Vera Gruz, together with the
orders for the pri visional seizure of Baldwin's property and his
banishment from the colony of Minatitlan. The governor, on
examining the papers, refused to confirm the decree of banish-
ment, and being advised that the case was one of judicial and
not of political cognizance, sent the documents to the judge at
Acayucan, in the district in which Baldwin resided. The judge
referred the expediente to his assessor, who advised him to call
for the original papers, it appearing that they had not been sent
in, and to take the declaration of the accused and of any wit-
nesses cited by him. An order was then communicated to the
alcalde for the original i)apers, but he refused to send them;
a second and third demand were e(iually fruitless. The papers
were only obtained toward the close of 1829, aft^r a fit'th
demand for them and an appeal to the minister of justice.
Ortiz was then absent from the colony. The motive for the
withholdment of the papers was alleged to be the fact that
the depositions were fraudulent. Indeed, they purported to
have been signed by the alcalde, who, as it appeared, could
not write his name.
The proceedings before the judge at Acayucan were begun
October 11, 1820. On the 26th of the same month Baldwin
appeared and made his declaration. It was then ordered that
ARREST, IMPRISONMENT, AND DETENTION. 3237
be be confronted with his alleged lujcusers and that the evi-
dence of certain other persons be taken. The investigation
continued from time to time till July 1831. In the mean time
Ortiz was succeeded as commissioner by one Hoyos, who seems
to have instituted a new set of prosecutions, based chiefly on
Baldwin's litigious disposition and generally unacceptable
deportment. But there was also a charge that he had killed
a woman at Tabasco by flogging, and had whipped other per-
sons. These prosecutions were brought before an alcade at
Minatitlan, named Bosaldo, who, after taking a number of ex
parte depositions, transmitted the papers to Hoyos, who sent
them to the governor, from whom orders were obtained for fur-
ther proceedings. Baldwin was then absent at Tehuantepec,
and it was decreed that he should on his return be arrested
and required to answer the new accusation. The American
commissioners contended that this proceeding was but a con-
tinuation by Hoyos of that begun by Ortiz, and that the
whole was fraudulent and malicious and intended to drive
Baldwin from the country and to get possession of his prop-
erty. Baldwin was subsequently arrested and imprisoned,
and the trial was continued. Upon his being confronted with
some of the alleged deponents, tliey denied their alleged depo-
sitions, and the charges against him were disproved. The
court found that certain of the allegexl depositions were forg-
eries, declared that the charges contained in them were refuted,
and ordered that the whole proceeding be discontinued, and
the prisoner released. This was on Februtiry 7, 1834.
The testimony of some of the witnesses traced the forgery
of the depositions to Ortiz, and a summons was issued in
April 1834 for Montalvo and certain other persons to be ex-
amined on that subject. Owing, partly, to political disturb-
ances in the country, the examination was not pressed, and it
slept until 1836. Several of the witnesses who were to be ex-
amined had then died, and the investigation made little prog-
ress. On the 3d of July 1837 the assessor to whom the case
was referred for advice ordered that Baldwin be allowed a de-
fender if he desired it. Baldwin, however, preferred to make
his own defense. On the 9th of August 1837 the assessor
at the cHy of Jalapa gave an opinion to the efl'ect that Bald-
win should be absolved from all charges preferred against
him, with the proviso that the judgment be confirmed by the
judge of the second jurisdiction. This judge confirmed the
3238 INTERNATIONAL ARBITRATIONS.
order of the inferior court, and thus tbe proceedings were
ended, including the charge of murdering the Tabasco woman.
As to the hiw of the case, the Mexican commissioners con-
tended that where an American citizen voluntarily placed
himself under the municipal laws of another country he must
take them as they were, and that he had no greater right to
complain than the Mexicans themselves if the laws should
be bad and imperfectly administered. The American commis-
sioners answered that if Mexico wished to maintain rank and
fellowship among the civilized nations of the earth she must
place her laws on a footing with the laws of other nations, so
far as related to intercourse with foreigners. What oppression
they might practice upon their citizens was one thing; the
practice of similar oppressions upon foreigners was another
thing. The latter had the right to appeal to the protection of
their government, if injured. Tliey referred to the case of
Meade against Spain for the purpose of showing an jicknowl-
edgment by Spain of liability for the palpable misconduct of
judicial tribunals. In that case Meade was ordered by the
court to pay over the sum of $50,000 into the royal treasury.
The money was in his hands as a depositary, and after he bad
paid the money into the treasury the depositor obtained from
the same court a decree directing Meatle to i)ay over the money
to him. As it was impossible for him to obey these contra-
dictory decrees he was sent to prison. The Spanish Govern-
ment admitted the justice of his claim. The case of Dr. Bald-
win, said the American commissioners, was much stronger
than that of Meade, since not only was there gross injustice
and oppression, but a most palpable fraud on the part of the
oppressors. The convention afforded the only means of re-
dress for Dr. Baldwin, unless the United States should resort
to an act of force.
The American commissioners demanded the following sums:
(1) $21,450, with interest from October 6, 1828, to January 20,
1842, for loss of effects, of property, and of merchandise, seized
by Ortiz in 1828; (2) $11,500, with interest from November 14,
1828, to January 20, 1842, for suspension of work in Dr. Bald-
win's mill during the sequestration of his property and his
banishment in 1828* (3) $15,000, as indemnity for his banish-
ment and the expulsion of his family, and for the suspension
of his agricultural business for three months in 1828; (4)
$2,750, with interest from October 1, 1828, for the seizure of
ARREST, IMPRISONMENT, AND DETENTION. 3239
timber and other property; (5) $50,000, as indemnity for his
imprisonment and the suspension of his work dnring twelve
months, and for expenses of defense; (6) $100,000, for loss of
property, including land, mills, a coftee plantation, and divers
implements, and also for the loss of the prodact of his capital,
of his labor, and of his enterprise during fifteen years; (7)
$243, for costs of translation, etc.
The umpire awarded, February 23, 1842, the sum of $100,000
in gross.
Another claim was made by Dr. Baldwin for personal injuries
suffered at the hands of the Mexican authorities while he was
residing as a merchant and carrying on an extensive business
in the settlement or colony of Coatzacoalcos. On December 31,
J 831, he received a written notification from the alcalde of
Minatitlan, requiring him to appear and answer for a small
account for debt. Upon the reception of this notice Dr. Bald-
win, in accordance with the law of Mexico, procured an hombre
huenOj or arbitrator, and set out for the ofiice of the alcalde.
When he reached the alcalde's house, he had, it was alleged,
no sooner entered than several armed soldiers appeared to pre-
vent his egress, while the alcalde addressed him in violent
language, and after some words ordered him to be put into the
stocks. Dr. Baldwin, being satisfied that an outrage was
meditated upon his person, declared that he would not submit
to the indignity, and attempted to escape. He succeeded in
reaching his house, where he made hasty preparations to fly to
Acayucan, but was pursued by armed men and a number of
people hastily got together by order of Hoyos, the commis-
sioners of the colony, by whom the proceedings were alleged
to have been maliciously instigated. In his efforts to escape
from his pursuers Dr. Baldwin fell and fractured his leg.
Thus disabled he was taken by the soldiers past his own
house, where his wife entreated that he might be permitted to
remain in his injured condition, and back to the town and
confined with his broken leg for two hours in the stocks.
Meanwhile, another division of his pursuers proceeded to
his house, which they searched, with great indignity to its
occupants. After Dr. Baldwin was released from the stocks
he was detained in prison for several days and was then trans-
ferred to the prison at Acayucan on a litter, against the advice
of a French surgeon then present. In the prison at Acayucan
he was i>ermitted to remain for eighty-four days, during the
3240 INTERNATIONAL ARBITRATIONS.
greater part of which time he had no surgical assistauce. The
imprisonment of Dr. Baldwin was for two alleged crimes, (1)
disobedience to the alcalde in tiying at the time the sentence
of imprisonment was imposed, and (2) in afterward firing a
shot at those who by order of the alcalde went to apprehend
him.
The American commissioners maintained that, withont con-
sidering whether the determination of the judge to imprison
Dr. Baldwin was just and in conformity with law, or whether
he had committed a crime, it was certain that for such offenses
he had suffered a disproportionate punishment. As to the
charge of firing the shot, it was disproved. While he had a
gun with him, it was found, when he was arrested, to be
loaded. The American commissioners awarded (1) for the out-
rage on Baldwin's person, by placing him in the stocks with a
broken leg and then detaining him in prison as a criminal for
eighty- four day, $20,000; (2) for permanent incurable injury
to his leg, $10,000; (3) for the interruption of his business, and
the injury to him as a mercbant, $10,000; (4) for the expenses
necessarily incurred in consequence of his criminal prosecution,
and in the presentation of his claim, $5,000; and (5) for costs
of translation and consulting a physician, $174.75 — in all
$45,174.75.
The umpire, February 23, 18^, adopted the award of the
American commissioners.
Dr. John Baldwin v. Mexico: Commission under the convention between
the United States and Mexico of April 11, 1839.
Dennis Gahagan, a citizen of the United
Oahagan'8 Case. States, was the agent at Tabasco, Mexico, of
Aaron Leggett, a merchant of New York. In
1832, while in the* interior on business, he was arrested. He
was soon released, but after returning to Tabasco was im-
prisoned again and in other ways ill treated. The principal
cause of his persecution seems to have been that he gave ad-
vice looking to the rescue from the hands of the Mexicans of
Mr. Leggett's vessel wbich had been seized by them and im-
pressed into service in a political contest then prevailing. Mr.
Leggett also preferred a claim for his own losses. The Ameri-
can commissioners said :
'* Neither in the papers .accompanying his (Gahagan's) mem-
orial, nor in ihe voluminous documents of Leggett's case, can
we discover the slightest pretense or provocation for the
ARREST, IMPRISONMENT, AND DETENTION. 3241
wanton outrages inflicted upon him. His conduct was in all
respects legal, circumspect, and respectful to the public au-
thorities, and to individuals; yet he was imprisoned by both
parties, loaded with irons, thrown into the most loathsome
dungeons, kept from starvation while there by the charity of
his countrymen, his assassination attempted, his health by a
wanton exposure in a sickly climate and season destroyed, and
his mind for a time became partially alienated in consequence
of his severe mental and bodily sufferings. No particular
cause for this barbarous treatment has ever been assigned,
though sought for at the time by the sufferer and his friends;
none has since been alleged.''
The American commissioners awarded "for imprisonment,
barbarous treatment, loss of health, and suffering in conse-
quence thereof," $10,000, and "for loss of his employment,
and expenses resulting therefrom, the sum of," $6,000. The
umpire, February 23, 1842, rendered an award in accordance
with that of the American commissioners.
Commission under the conventi on between the United States and Mexico
of April 11, 1839.
Claimants were the owners of certain mer-
Hammonds' Case, chandise which they were transporting from
St. Louis, in Missouri, to Santa ¥6, then (in
1828) in Mexico. It had been transported in a wagon most of
the way, but because of mountains and bad roads it became
necessary to transfer a portion of the goods to pack horses.
While these were on their way to the custom-house in Santa
F6, in charge of a Mexican driver employed for the purpose,
they were seized on the pretense that he intended to smuggle
them, and without any judicial proceedings or trial what-
ever were sold and the proceeds converted by the Mexican
authorities.
The American commissioners awarded damages for the talk-
ing of the goods and the umpire sustained them.
The claimants also asked damages for alleged wrongful ac-
tion of the customs authorities in 1830, in withholding permits
for the transportation of goods. It seems that they at the
time took some action against the authorities, the precise na-
ture and results of which were not disclosed. The American
commissioners awarded $500 on this score, with interest, but
the umpire disallowed it.
Eli E. and Jervis S, Hammond'y. Mexico : Commission under the conven-
tion between the United States and Mexico of April 11, 1839.
3242 INTERNATIONAL ARBITRATIONS.
^'Tbe claimants above named, citizens of
BoUet's Case. the United States, being temporarily domiciled
at Monterey, in California, in the year 1840,
were, with some sixty or seventy other foreigners, forcibly
seized and imprisoned by order of the governor of California
upon the pretext that they had attempted to excite an insur-
rection. The prisoners were placed on board a Mexican vessel
and carried to Santa Barbara, where they were confined abont
ten days. They were then sent to San Bias where they were
again confined as close prisoners. From the latter place they
were sent to Topic, where they were brought to trial before a
Mexican tribunal, by which they were fully acquitted and dis-
charged. During the whole time of their imprisonment they
were treated with extreme harshness and cruelty, and fre-
quently refused the means of subsistence for several days
together. From this inhuman and barbarous treatment many
of the prisoners would doubtless have perished, but for the
charitable interposition of strangers, who furnished them with
food and by other means mitigated their sufferings. The
claimants upon their return to Monterey, after their acquittal,
found the little property which they had left confiscated by
order of the governor, and they were left \vithout any means
of subsistence. The seizure and imprisonment of the men
appears to have been wholly without cause, as there was not
the slightest evidence to show that they had taken part in the
political disturbances of the country. It was a wanton act of
arbitrary power and without even the color of law to justify or
excuse it, and could have been prompted only by unfounded
suspicions or a hatred of foreigners. In the opinion of the
board the claims • * • are valid, and the same are
allowed accordingly."
Cases of Joseph Bolles and John Christian: Opinion of Messrs. Evans,
Smithy and Paine, commissioners, December 4, 1850, under the act of Con-
gress of March 3, 1849. An award was made in favor of Bolles for $?. 821.25 —
$1,850 principal, and $971.25 interest; and in favor of Christian for
$1.374.50 — $902 principal, and $472.50 interest. Awards were made in
other cases growing ont of the same transaction. All these awards were
for losses of property. It appeared that the Mexican Government at the
prisoners' release offered an indemnity for their imprisonment, amounting
in some cases to $250 and in others to $300 or $400, and that, with the ex-
ception of one Isaac Graham, they accepted it, through the American
minister at the City of Mexico, reserving, however, their ri<?ht to claim for
loss of property. Graham's case was the most aggravated of all. '* He
was/' said the commissioners, ** shot at and wounded, cut with a sword, and
ARREST, IMPRISONMENT, AND DETENTION. 3243
in varioQS ways treated with exceeding cruelty and indignity. He was
possessed of considerable property and was doing a profitable business as
a distiller, and sustained great loss in consequence of his long absence."
He refused to receive the amount that was oifered to him. The commis-
sioners awarded him for injuries in person and in property $38,125— prin-
cipal $25,000 and interest $13,125.
About the time of the invasion of Sonora by
Haiinam'i Case. Grabb and bis followers from the United
States, in 1857, claimant, a citizen of the United
States, was arrested and taken before the proper authorities
for examination on suspicion of complicity with the filibusters,
but was discharged after a brief detention. The commissioners
dismissed the claim. " Claimant,'' said Mr. Wadsworth, " seems
to have had a fair hearing and a reasonably prompt acquittal
and discharge. • * * I do not think the action of the au-
thorities in the premises, under the surrounding circumstances
of alarm and danger, created by the action of citizens of the
[Jnited States, forms any just ground of claim by the United
States.''
A, B, Hannum v. Mexico, No. 321, convention of July 4, 1868.
The commissioners, Mr. Palacio delivering
fiaUengei'i Case, the opinion, refused to allow a claim growing
out of the prosecution of certain citizens of the
. United States in Mexico for carrying Mexican doubloons (gold
coins) from Durango to Mazatlan, on the coast, without a per-
mit, the laws of Mexico prohibiting the carrying of coined
money from the interior of the country into the seaports, unless
a written permit should have been i)reviously obtained. "The
Mexican authorities," said Mr. Palacio, ^* by complying with
\ these legal provisions, have injured nobody and limited them-
N^lves to fulfill their duty."
XSkarle» D. Gibhes, Exr. of Henry BalUnger, v. Mexico, No. 134, convention
of Jnly 4, 1868, MS. Op. 1. 136.
In 1854 President Santa Anna issued a de-
HalMtUd'8 Case, cree reviving a Mexican law of 1828, forbid-
\ ding foreigners to enter or travel in Mexico
without J^assports, subject, if they were found without them,
to arrest aJt^d detention, unless they could prove that their omis-
sion was not culpable. The occasion for reviving this law was
found chiefly in the attempts made from the United States
by Walker and other filibusters to invade Spanish- American
countries. After the revival of the law, one Halstead went
3244 INTERNATIONAL ARBITRATIONS.
from Sau Francisco to Acapulco, tben in the possession of
General Alvarez, to obtain a cargo of corn. He bad no pass-
port. After remaining at Acapulco for several days he went
to Manzanillo, but failing to obtain a cargo there went to
Colima, in the interior, where he was informed that the cx)rn
could be purchased. At Colima he was arrested for beii)g
without a passport, the penalty for which was a fine of $20 and
imprisonment for ten days.
The commissioners being unable to agree, the case was re-
ferred to the umpire. Dr. Lieber, who said :
**At a period when civil commotions were chronic in Mexico
and when America almost looked with shame upon Walker's
repeated piratical attempts to establish a 'military democracy,'
as he called it, in countries with which his country was at
peace, at this period Halstead entered Mexico without a pass-
port, committing not 'a criminal violation of the laws of Mex-
ico'— ^passports are a matter of police — but an offence for whicli
he was arrested according to the laws of Mexico. He was
legally arrested and kept legally in prison for a couple of weeks,
but he was held a prisoner for something like four months,
plainly not according to right and Justice."
A, H, Halstead v. Mexico, No. 18. convention of July 4, 1868, MS. Op. 1. 251.
The nmpiro having decided that Halstead was illegally detained in prison,
the commissioners awarded him $1,600.
" William Collier resided for fifteen years in
CoUiei'8 Case. Mexico, chiefly, or wholly so, at Tepic, in the
Mexican State of Jalisco, on the coast of the
Pacific. Claimant [Collier] was the superintendent, or director,
as it was called there, of a cotton factory, belonging to the
firm of Barron, Forbes & Co. In January 1856 the unfortu-
nate country was once more disturbed after the expulsion
of Santa Anna and during the attempts made to settle a
government of the Liberals. * * * Barron and Forbes
were expelled from Tepic; the cotton factory was assaulted by
some persons who were driven away, but the business went on,
when, toward the end of January, Collier attracted the dis-
pleasure of the Mexican national guards and of the authorities,
perhaps by discountenancing the entering of the people occu-
pied in the factory into the national guards, a body of volun-
teer militia, or by other acts, real or merely suspected. Accord-
ing to his own statement he did not act wisely toward the
Mexican authorities. Claimant, as appears from several of his
own letters on the docket and from the answer which he re-
ARREST, IMPRISONMENT, AND DETENTION. 3245
ceived from Mr. Gadsden, the American minister at Mexico,
seems to have been of a temper not too placid or patient, which
may very naturally have contributed to the feelings or views
entertained by the Mexican authorities toward him.
On the 28th of February Collier and his brother-in-law, Hale,
were assaulted and robbed. Collier was wounded, whether
severely or not does not appear, by a man, Jesus Gutierrez
Garcia (called acting adjutant of the national guards), saying,
as it is given in the papers on the docket, that he committed
this crime at the instigation of Jos6 LanderosCos, commandant
of the guard, and of someone else, in order to ascertain whether
Collier and Hale carried any interesting papers about them.
(See paper No. 39 and others.) The whole statement is some-
what undefined, and, what seems surprising, not plainly men-
tioned again in the claim for damages.
" On the 2d of April Collier was arrested by Pens, the polit-
ical chief, at the request of Acibo, the prosecuting fiscal or
public prosecutor, and confined at the barracks of the national
guard until April 5th — three days — when he was discharged
on parole, and after forty days more the whole prosecution was
abandoned. While Collier was imprisoned the factory was
searched, the arms which Collier kept by license from the
authorities for the protection of the factory were seized, and
it is mentioned that during this search people , outside the
factory called, 'Death to the foreigners!' and * Death to
Guillermo Collier!' Everything indicated a suspicion, prob-
ably a pretty general suspicion, against Collier, either that he
favored the cause opposed to those then in power, or that he
was not loyally disposed toward Mexico or its rulers in gen-
eral, we have no means of ascertaining which, at this distance
of time and space.
" We have, then, two alleged wrongs complained of, the
robbery of Collier by Garcia, and Collier's detention in the
barracks for three days, while, as the learned commissioner of
the United States urges, the constitution of 1824, in force in
April 1856, declares that no one shall be detained on suspicion
only {solamente por indicios) for more than sixty hours. I
have not the constitution of 1824 with me, but I readily admit
the citation. » » • But it appears that there was no con-
stitution existing at the time claimant was arrested. The
federal constitution of 1824 ceased to exist in 1853, and from
that date to February 12, 1857, there was no constitution in
324G INTERNATIONAL ARiaTKATIONS.
existence, because the whole country was under tlie rule of
three successive dictators, Santa Anna, Alvarez, and Conioii-
ibrt. The overthrow of Santa Anna and the so-called clerical
party caused a long and general revolution, especially serious
in the State of Jalisco, and the constitution of 1824 can not be
said to have existed at this time. If, however, it had existed
as the active law of the land, would it not be admitted on all
hands that the difference between seventy two hours, the time
of the three days' imprisonment, and the sixty hours allowed
by the suspended or canceled constitution, in short the dif-
ference of the ten or twelve hours, is not very startling in a
country so disturbed by military disloyalty and political
violence as Mexico was at that time ? * * *
"The habeas corpus principle, as the Constitution of the
United States calls the protection of the individual against
arbitrary or hasty imprisonment, and the insurance of a speedy
trial, embodied in the immortal habeas corpus avt of 1G79 which
England bestowed upon our race as one of the greatest gifts —
the habeas corpus principle, 1 say, of which the mentioned
passage in the constitution of Mexico somewhat partakes, is a
sacred principle indeed for all people that value liberty, but it
is not absolute, and can not be so. The very Constitution of
the United States provides for cases where it may be suspended.
The Americans were obliged to suspend it during the recent
civil war, and I do not know whether martial law did not exist
in the State of Jalisco at the time when claimant was arrested;
but whether martial law existed or not, the certain fact is that
Jalisco was in a state of political disturbance, and that Collier
was not detained on suspicion over seventy-two hours, perhaps
not even fully for that time. ♦ * *
"There seems to have been fair reason for the suspicion mani-
fested against Collier. Not that he committed the offense of
which he was suspected — we know nothing about that — but
that his conduct occasionally or generally was such that it
naturally led to 8usi>ect him of that which he was believed to
have committed, namely, the using of his inlluence to prevent
people employed in his establishment from enlisting in the
volunteer troops destined to protect the State, or the immedi-
ate neighborhood, and of sympathizing with the domestic
enemy of Mexico. After three days' iminisonment claimant
is dismissed. Some measure of security is continued for some
weeks, perhaps more pro forma than otherwise, perhaps
because it was believed necessary. There was at all events
ARREST, IMPUISONMENT, AND DETENTION. 3247
no maltreatment in this. ♦ ♦ • i can not come to tbo con-
clasion that any award is due to the United Stjites from the
Republic of Mexico for the benefit of claimant, and conse-
quently decide that the case must be dismissed."
Lieber« umpire, William Collier v. Mexico, No. 118, coiivention of July 4,
1868, MS. Op. II. 323.
Claimants used insulting language to a mag-
Twohig*! Caie. istrate before whom they were sued, and the
magistrate had them arrested by armed men
and thi-own into prison for contempt. They were released
after three hours' detention. The commissioners held that
both sides acted in bad temper and improperly, and dismissed
the case.
John Twohig and Joseph Deutz v. Mexico Nos. 349 and 350, conyontiou of
July 4, 1868, MS. Op. 11. 313.
Claimant went from San Francisco toGuay-
Barae^i Case, mas on the Patrita, a vessel bearing the Chilean
flag. There were on board sixty-eight men,
all of whom went as passengers to the State of Sonora. The
same vessel, then under the name of the Aiiitaj had brought
Walker with his expedition to Toros Santos, in Ijower Cali-
fornia; and when she arrived again under the Chilean flag and
under another name, in ballast and with sixty-eight passengers,
the Mexican authorities seized her and put the passengers
ashore on an island ofl' tlie coast, without slielter, exposed to
the smallpox and fed with insuflicient food. Claimant bore a
passport as a citizen of the United States, visced by the Mexi-
can consul at San Francisco. The excuse made for his deten-
tion and for that of his companions was that they were sus-
pected of being engaged in a fllibustering expedition. After
sixty days' detention, claimant was released without trial,
although in the mean time he had been subjected to other
hardships in other phices of im])risonment than that referred
to. The commissioners, being of opinion that his detention
was arbitrary and unreasonably harsh, made him an award of
$5,100.
JFilliam P. Barnes v. Mexico j No. 29, couvontion of .Inly 4, 1868, MS. Op.
II. 295. Awiirds were made in favor of other Pairita priAoncrs, as follows :
Jos, M, Bryant v. Mexico^yo. 26, 2 M8S. Op. 29r>; James L. Springer v.
Mexico, No. :i59, id. 299; Peter Blohm v. Mexico, No. 403, id. 302; George
Lauer v. Mexico, No. 464,id.:J03; Isaae O. hrael v. Mexico, No. 325, id. 304;
Edgar IVarren v. Mexico, No. 17, MS. Op. III. 565.
3248 INTERNATIONAL ARBITRATIONS.
"Francis W. Eice, claimant, a native citizen
Bioe*! Case. of the United States of America, was consul of
the United States at Acapnlco, in tbe Republic
of Mexico. On the 11th of June 1852, while consul, he was
arrested by order of the Mexican authorities and kept in jail
for three days, after which he remained a prisoner in his own
house; that is to say, he was ordered by the Mexican court to
remain such, but he states himself that he utterly disregarded
the order. He was several times again < imprisoned in his
house,' as he avers himself, and now asks for the sum of
$50,000, made up of losses sustained by the prevention of busi-
ness which he would have done, by the loss of his consular
fees, and, I must supiK)se, by a sum of money to be paid
for the indignity offered to him as consul by the original im-
prisonment put upon him, if any were, for it does not appear
very clear how he was imprisoned after his first detention in
jail. ♦ ♦ ♦
^< It is well established in the law of nations, and has been
so ever since the full development of this branch of jurispru-
dence, that a consul is not a diplomatic agent enjoying ambas-
sadorial privileges; but, on the other hand, it is also acknowl-
edged that a consul ought to be treated with international
regard and respect, a rule on which the American Government
has repeatedly and signally sicted, and which, in the case of
Rice, it seems has not been strictly observed by the Mexican
authorities; and on the other hand there is no doubt that
claimant's conduct as consul had been occasionally objection-
able. * ♦ ♦
"As to the portion of the damages claimed which may be
imagined to arise out of consequential damages, the umpire
desires to lay down as one of the requisites for consequential
damages, that there must be a manifest wrong, the eftect of
which prevents the direct and habitual lawful pursuit of gain,
or the fairly certain profit of the injured person, or the profit
of an enterprise judiciously planned according to custom and
business. A mere device of speculation, however probable its
success would have been or may appear to the projector, can
not enter into the calculation of consequential damages. The
umpire finds it impossible to say what the loss of profits may
have been to claimant, if there were any, for lie can not find
out whether claimant pursued any distinct line of business.
• * * The Mexican judge kept Rice for more than the sixty
hours (that is to say, for three days and nights) allowed by the
ARREST, IMPRISONMENT, AND DETENTION. 3249
Mexican constitution of 1824, on suspicion alone. To this it is
replied that Rice's acts were * public and notorious, multifarious
and proved,' and did not require any specified cbarge of of-
fenses; but it will be observed that ' notorious and public acts,'
though they be noti^rious, form no substitute for that habeas
corpus principle, as it may bo called for brevity's sake, which
among other requisites demands a statement of the reason of
the arrest, issued by lawful authority. • ♦ • After much
weighing and careful comparing, I have come to the following
award, that the Republic of Mexico pay to the United States
of America the sum of $4,000 in United States currency, no
interest."
Lieber, umpire, April 10, 1872, Francis W. Rice v. Mexico^ No. 7, conven-
tion of July 4, 1868, MS. Op. II. 471.
Claimant endeavored in 1857 to export from
Atwood'i Case. Mexico a lot of live stock, including some
mares. At the time, the exportation of mares
was forbidden by law, and in consequence claimant was on
several occasions detained by the authorities, though finally,
by some arrangement with them, he was permitted to pass
vrith all the animals iiito Texas. The commissioners held that
he could not make a claim for detention, as the business in
which he was engaged was illegal, and the arrangement finally
made with the authorities, whatever it was, unlawful.
John W, Aticood v. Mexico No. 128, convention of July 4, 1868, MS. Op.
III. 101.
Claimant had some goods in the store of
Bennettfs Case, one Milnio, at Piedras Negras. Milmo, being
charged with crime, was arrested, and an em-
bargo placed on all the x)roperty in his store. Claimant asked
damages for alleged losses by depreciation in value of the
goods from the tiaie of their seizure till their restitution, for
the expenses incurred in obtaining their restitution, and for the
abstraction of some of the goods and damage done to others
while they were in the possession of the Mexican authorities.
The umpire said :
" The umpire is of opinion that, considering that the embargo
of Milmo's goods was made by a judicial order, the authorities
had a right to seize everything that was found on his prem-
ises, and that the burden of proof that a part of it belonged to
the claimant was upon the latter. It was his misfortune that
the consignee of his goods was accused of a crime, and it was
a part of that misfortune that he was obliged to go to some
3250 INTERNATIONAL AR11ITRATI0N8.
expense to prove that tlie jiropcrty belonged to liiin. But the
iini|>ire does not thitik that the Mexinia Govenitneiit can be
made responsible tor his e\i>eiig(>8 on that accoiint.''
The evidences of uurcnsonable detention of the floods before
restitntion were deficient, as well as of damage and abstraction
while they were in the possession of the Mexican Government.
The umpire therefore dismissed the claim.
ThorDtoa, uuijiire, WiUiata .V, fie»n«ll v. Mexico, No. 557, convention of
July 1, 1868, M8. Op. III. 217, IV. 616.
"In the case of John D. Cramer v. Mexico
OnuMi'iOaw. ^o- 950, the umpire is of opinion that the
charges made aj^ainst the lUexican authori-
ties are not sufllciently proved to Justify his condcmniug the
Mexican Government to make compensation to the claimant.
It must be remembered that at tliu time of the claimant's
arrest the ^rnaranties of the eonstitntioii were suspended, and
a simple order by a military or civil authority was a snftieient
warrant of arrest. It is clear that there Vivn a suspicion that
the claimant was implicated in an attempt at revolution against
the government, and the iiutliorities were .instilled in detain-
ing the prisoner for the purpose of imiuiring intu tbe grounds
of that suspicion, especially as an American citizen with whom
tbe claimant had had comnumieations had at the time at-
tempted to raise a revolution against the Mexican Govern-
ment Kor does the umpire think thitt thirty-five days was
uu unreasonable time for making these iuqniries, considering
that it was not unlikely that they were partially made in the
United States. Anyone who vurefnlly reads the evidence of
the three witnesses, one of whom was the United States con-
sul, will acquire the conviction that it was obtained princi-
pally from hearsay, lu the claimant's memorial it is stated
'that he was finally able to get his case to tbe ear of the
American consul at Mii/.atlan,' but Mr. Sisson himself gives
his evidence as if he had well known the circumstances of the
case from the moment of the arrest. With regard to the ill
treatment complained of in prison, nbt one of the witnesses,
not even Ellert, who was in tbe same prison with the claimant,
as.serts that be saw the claimant beaten. They say that they
knew it, but do not say how they knew it. Ttie statements aa
to losses suHered by the claimant in consequence of his im-
prisonment are utterly devoid of ]ir<.M)f and are merely un-
founded opinions of the witnesses, who must have derived
ARREST, IMPRISONMENT, AND DETENTION. 3251
those opinions from luformatiou furnished by the claimant.
Neither did the claimant avail himself of his right to bring an
action for damages against the prefect, nor even to report the
case to the Mexican Government. It is still more remarkable
that neither the claimant nor the United States consul appears
to have registered any written protest or to have made any rep-
resentations to their own government, although the afi'air is
alleged to have involved a loss to the claimant of $250,000.
The umpire is of opinion that the Mexican Government can
not be called upon to pay compensation in this (^.ase."
Thornton, umpire, July 22, 1876, John D, Cramer v. Mexujo, No. 950, con-
vention of July 4, 1868, MS. Op. VI. 501.
Olaimant was arrested and had his papers
Jonan's Case, taken from him by order of Alvarez, dictator
of Guerrero. He was held in prison for long
periods in 1853 and 1854, on charges not within the jurisdic-
tion of the courts. The following decision was made:
^^It appears to the umpire that the arrest of the claimant in
December 1853 was illegal in form; that almost the whole of
the accusations against him were not within the jurisdiction
of the Mexican courts * ♦ ♦ ; that the fact of their trying
claimant upon accusations over which they had no jurisdiction
prolonged the proceedings most unjustly toward the claimant;
that from the beginning to the end of the proceedings the forms
of law w^ere inMnged to the prejudice of the accused; that
the legation of the United States at Mexico called the atten-
tion of the Mexican Government to the want of jurisdiction of
tbe tribunals over the questions at issue, and that the Mexican
Government having been thus warned, and having abstained
from attempting to prevent these illegal acts, which it had full
power to do, assumed the responsibility of those acts.''
Thornton, umpire, November 20, 1875, Augustus Jonan v. Mexico, No. 70,
convention of July 4, 1868, MS. Op. IV. 91, VII. 355. An award was made
to the claimant of $35,000 Mexican gold, with interest.
The bark Emily Banningj having arrived at
aae 0 t 0 *• y ^(jap^j^jQ j^ distress, was detained and her
Banning.
captain and crew imprisoned on suspicion of
being fillibusters. Tbe detention was long and the imprison-
ment harsh. The umpire held that the whole proceeding was
unjustiliable and made an award in favor of claimants.
Thornton, umpire, Nautilus Submarine Pearl Fishing Co,, owner of the
bark, v. Mexico, No. 136, convention of July 4, 1868, MS. Op. III. 14, 334;
Martha E. Thatcher, widow and administratrix of Anthony Thatcher, captain
of the bark, No. 137, MS. Op. III. 22, 336.
5G27— VOL. 4 2
3252 INTERNATIONAL ARBITRATIONS.
Claimant was arbitrarily arrested by an
Fioree'i Caae. oflicer of local i)olice in Mexico aud kept all
night a prisoner in a liousc. It appeared that
the authorities had proceeded against this official, fined and
reprimanded him, and dismissed liiui from office. It was held
that the claimant was not, under the circumstances, entitled
to an award against the Mexican Government.
John B, Pierce v. Mexico, No. 806, conveution of July 4, 1868, MS. Op.
VII. 28.
"The arrest of the claimant in the city of
Bxito'sCase. Havana having been effected in violation of
the stipulations of treaty, and his health hav-
ing been injured by imprisonment, he has a riglit to recover
damages to the amount of $600, with interest at 6 per cent a
year, since the 12th of February 1869, to this day."
M. Bartholdi, umpire, November 14, 1874, Jos^ Vicente lirito v. Spain,
No. 23, Spanish Claims CommisHioD, agreement between tbo United States
and Spain of February 11-1L>, 1S71.
The claimant demanded $25,000 damages.
Griffin*! Case, on the ground that he was without probable
cause, and maliciously and opi)ressively, ar-
rested and imprisoned. It appeared that on April 4, 1871,
he was master of an American brig, then lying at Sagua la
Grande in Cuba. On the day when the vessel was ready to
sail, a slave belonging to the charterers was discovered se-
creted in the hold, and was t^iken out by their agent, who
reported the circumstance to the authorities. The autliorities
ordered the arrest of the claimant on the charge of attempt-
ing to aid a slave to escape, and he was imprisoned from the
4th of April till the 13th of the following month, when he was
discharged on nominal bail. Ue claimed damages for costs
and charges incurred by reason of his imprisonment, for losses
and damages sufl'ered, for damage to vessel and cargo, etc.
The commission awarded him §500 in American gold.
Joseph Griffin Y, Spain, No. 87, April 10, 1875, Spanisb Claims CommisHion,
agreement of February 11-12, 1871.
" In the case of Pedro MoHere v. Spain^ No. 4,
Moliere's Case, it is my opinion that the claimant has no right
to recover damages from the Spanish Govern-
ment for the injuries he received in a private quarrel on the
30th of August 1870. But inasmuch as the claimant was
subsequently arrested, and though it is not jwssible to decide
ARREST, IMPRISONMENT, AND DETENTION. 3253
from the testimony brought before the commission if his arrest
was or was not ordered upon sufficient ground, as there is no
doabt that he was not tried, as he ought to have been, before
a competent tribunal, and that after sixteen days of imprison-
ment, it was only owing to the exertions of the consul-general
of the United States that he was released, it is my opinion
that the claimant has a right to recover damages to the
amount of $3,000, with interest at 6 per cent per annum,
from the 1st of September 1870 to the day of payment."
M. Bartholdi, . umpire, October 25, 1875, Pedro Moliere v. Spain, No. 4,
Spanish Claims Commission, agreement of February 11-12, 1871.
In the brief of the advocate for Spain it
Case of Cairias. was stated that the wrongs of which the claim-
ant complained were that he was arrested on
the 15th of January 1869, conducted to Havana, confined in a
dark cell for fifty-five days, tried upon a charge of complicity
in a political riot in which two policemen were shot, and con-
demned, though on appeal he was acquitted; that he was
then, March 12, removed from the dark cell and i)laced in the
stocks, and kept there for fifteen days and nights; that he
was then, about March 27, taken from the stocks and placed
in the gallery of the prison, and there detained until July 21,
when he was released and taken by two policemen to a steamer
bound for Key West, on which he was forced to sail, being
frirnished with a passport for that island; that during his
imprisonment he was tried upon charges of being a Freemason,
of vagrancy, and of insolence and defiance of Spanish authority.
The evidence showed that the claimant was acquitted on the
charge of complicity in the insurrection, but when he was ex
polled the charge of vagrancy was still pending. He claimed
damages to the amount of $187,363.25 for imprisonment, loss
of health, expenses, etc. The arbitrators awarded him $3,000,
with interest at 6 per cent from January 15, 1869, till final pay-
ment of the award.
Teodoro Cahia$ v. Spainy No. 10, March 17, 1877, Spanish Claims Com-
mission, agreement of February 11-12, 1871.
The claimant, who was the master of an
Jones's Case. American brig, was on August 8, 1871, ar-
rested at Santiago de Cuba on the charge of
having aided a revenue accountant who had stolen public
money and stamps to escape from Cuba, by conveying him in
3254 INTERNATIONAL ARBITRATIONS.
•
the brig on a former voyage to tbe Island of Haiti. His bail
was fixed at from $17,000 to $20,000; but after tbirty-oue days'
imprisonment he was, through the intervention of the United
Stsites consul, released on $200 bail. After his release the
claimant resumed command of his vessel and returned to New
York. The judgment of the court on the charge against him
was not delivered until September 3, 1874. This judgment
declared that there was no proof, though there might have been
suspicious, that the claimant knew of the crimes of the revenue
accountant when he conveyed him away in his vessel.
The arbitrator for the United States thought that the pro-
ceedings against the claimant wore irregular, because it was
not until two years after his arrest that the prosecution was
begun against the fugitive accountant. The arbitrator, treat-
ing the latter as principal and the claimant as accessory, con-
tended that no trial of the claimant could regularly have been
held until the trial of the i)rincipal offender, the fugitive ac-
countant.
The Spanish arbitrator held that the fact that the claimant
was found to be innocent did not entitle him to damages when
the formalities of the law had been observed, and when the
authorities were not actuated by malice against him.
It was also maintained by the advocate for Spain that the
claim did not come within the jurisdiction of the commission,
because it had no connection with the insurrection. In sup-
port of this contention he referred to the title of the agreement
of February 12, 1871, in which it is described as providing for
an arbitration of claims arising " since the commencement of
the present insurrection." By the fifth article of the agree-
ment, however, the arbitrators were expressly invested with
"jurisdiction of all claims," etc., "for injuries done to citizens
of the United States by the authorities of Spain in Cuba since
the 1st day of October 1868."
The umpire rendered the following decision : "The umpire is
of opinion that the arrest was legal, but that, inasmuch as the
amount of bail required was exorbitant, the treaty of 1795 was
violated, and that the claimant under the circumstances is
entitled to some indemnity; and the umpire hereby decides
that an amount of $5,000, without interest, be paid on account
of this claim."
Count Lewenhaupt, umpire, December 27, 1880, William A. Jones v. Sjyain,
No. 89, agreement between the United States and Spain of February 11-12,
1871.
ARREST, IMPRISONMENT, AND DETENTION. 3255
The owners of the vessel referred to in the
"* *!k Co*^ * preceding case demanded $35,000 damages for
her detention, by reason of the arrest of the
master; for sickness which befell the crew in consequence of
their detention, involving another month's delay, and for the
odium that attached to their house by reason of the arrest of
the master of the vessel, which was engaged in a regular
trade between New York and Cuba. On this claim the umpire
made the following award:
" The umpire is of opinion that if any time was lost between
the 8th and 14th of August 1871 by suspension of work, such
delay was the result of gross mismanagement, for which Spain
is not responsible, but that it is reasonable to suppose that the
owners suffered some loss by being illegally deprived of the
services of the cax)tain for about a month; and the umpire
decides that an amount of $1,000, with G per cent interest a
year from the 16th of September 1871 to this day, be paid on
account of this claim.''
Count Lewenhaupt, umpire, December 27, 1880, Waydell cf- Co. v. Spain,
No. 88.
"The memorialist represents that he is a
Tnunirali*8 Case, citizen of Chile, at present a member of the
Chilean Congress, residing in Santiago; that
on February 5, 1891, he was authorized by the vice-president
of the Senate of Chile and the president of the Chamber
of Deputies, who together represented the authority of the
Chilean Congress in its efforts to put down the dictatorship
of Balmaceda, to proceed to the United States to purchase
the arms and ammunition which were needed; that upon his
arrival in New York he consulted some of the leading law-
yers in regard to his right to ship arms and ammunition, and
was in every case informed that such shipment was not in vio-
lation of the laws of the United States; that he accordingly
bought from Messrs. Hartley and Graham, of New York, five
thousand rifles and two. million cartridges ; that he cabled the
Chilean Government at Iquique to send one of their steamers
to San Diego, California; that he arranged to ship the arms
and ammunition to San Francisco, where they were put on
board the American schooner Robert and Minnie^ which was
towed to the Island of Catalina, where she was to await the
arrival of the Chilean steamer Itaia ; that the Itata was de-
layed two weeks, and although she had instructions from him
not to enter the port of San Diego but to await outside for
3256 INTERNATIONAL ARBITRATIONS.
orders, want of coal obliged her to put into San Diego on May
3, 1891; that the presence of the Robert and Minnie had in the
mean time been discovered, and it was suspected that the Itata
had come to get the arms and ammunition which composed her
cargo; that this suspicion led to the Itatd^s arrest soon after
her arrival in San Diego; that on the 6th of May 1891, with-
out obtaining clearance papers, the Itata weighed anchor and
left San Diego; that on the 11th of May 1891 he left San
Francisco, California, for New York, but on arrival at Oakland
was detained by two detectives on board the ferryboat and
taken back to San Francisco like a common criminal ; that he
was taken to the marshal's office and informed by the United
States district attorney that he must go to jail unless he could
furnish bond for $15,000; that he protested against his arrest
without a warrant and asked by whose orders he was arrested.
The district attorney replied that he was arrested by order of
the Attorney-General of the United States ; that having asked
why he was arrested the district attorney informed him that
he was arrested for having violated the neutrality laws of the
United States in fitting out and arming the schooner Robert
and Minnie to cruise and commit hostilities against the Republic
of Chile; that he was able to furnish the bond for $15,000 and
allowed to go free, but was informed that he could not leave
San Francisco, where he must wait the indictment of the
grand juiy of Los Angeles; that being thus detained he sent
a telegram to the Assistant Secretary of State, Wharton, on
the 15th of May, which is set out in the memorial; that to this
telegram he received no reply; that having been indicted by
the grand jury he was obliged to go to Los Angeles to stand
his trial, which was postponed until September, and then
returned to New York, and the trial having again been post-
poned to October he was obliged to return to Los Angeles and
await the result of his trial, until the 3d of November, when
Judge Ross, of the district court of the United States for the
southern district of California, delivered his opinion and in-
structed the jury to find a verdict of not guilty. The memori-
alist then proceeds to quote the opinions of several of the
officials of the United States Government to show that he
had the right to purchase arms and munitions of war in the
United States and to ship such articles abroad. He represents
that he was detained by the civil authorities of the United
States from May 11 to November 3, 1891 ; that by the prose-
ARREST, IMPRISONMENT, AND DETENTION. 3257
cution of the civil authorities of the United States he was
obliged to suffer great inconvenience; that he was damaged in
his reputation and suffered considerable pecuniary losses, for
all of which he claims the sum of $32,500.
*'The agent of the United States has demurred to the memo-
rial of the claimant as insufficient under the treaty and in law
to entitle him to maintain his claim against the United States.
We are of opinion that the demurrer should be sustained.
"Section 5283 of the Revised Statutes of the United States
provides:
''^ ^ Every person who, within the limits of the United States,
lits out and arms, or attempts to fit out and arm, or procures
to be fitted out and armed, or knowingly is concerned in the
furnishing, fitting out, or arming of any vessel, with intent that
such vessel shall be employed in the service of any foreign
prince or state, or of any colony, district, or people, to cruise
or commit hostilities against the subjects, citizens, or property
of any foreign prince or state, or of any colony, district, or
people with whom the United States are at peace, » » •
shall be deemed guilty of a high misdemeanor, and shall be
fined not more than ten thousand dollars and imprisoned not
more than three years.'
"The Supreme Court of the United States, in the case of
Carlisle et al. v. Tlie United States, reported in 16 Wallace,
p. 147, has decided that —
" ' Aliens domiciled in the United States owe a local and tem-
porary allegiance to the Government of the United States.
They are bound to obey all the laws of the country not imme-
diately relating to citizenship during their residence in it, and
are equally amenable with citizens for any infraction of those
laws.'
"In 1793 Mr. Jefferson, Secretary of State, in a letter to Mr.
Genet, held :
"* Aliens residing in the United States are as much respon-
sible for breach of neutrality laws as are citizens; aliens, while
within our jurisdiction and enjoying the protection of the laws,
being bound to obedience to them, and to avoid disturbance
of our peace within, or acts which would commit it without,
equally as citizens are.' (Second Wharton's International
Digest, sec. 203, p. 503.)
"Mr. Webster, Secretary of State, December 23, 1851, held:
"'Every foreigner- born residing in a country owes to that
country allegiance and obedience to the laws as long as he
remains in it, as a duty imposed upon him by the mere fact of
his residence, and the temporary protection which he enjoys,
3258 INTERNATIONAL ARBITRATIONS.
and is Jis much bound to obey its laws as native sabjects or
citizens. This is the aniversal understanding in all civilized
states, and nowhere a more established doctrine than in this
country.' (Wharton's Digest, sec. 203, p. 504.)
**Mr. Marcy, Secretary of State, July 20, 1855, said:
" * If a native-born citizen of the United States goes into a
foreign country and subjects himself to a prosecution for an
offense against the laws of that country, this government can
not interfere with the proceedings, nor can it claim any right
to revise or correct the error of such proceedings, unless there
has been a willful denial of justice, or the tribunals have been
corruptly used as instruments for perpetrating wrong or out-
rage.
" ^ This government is in the daily practice of trying and
punishing the subjects of other states for oHenses committed
here. Those states have no right nor would they be allowed
to interfere with our proceedings against their subjects, upon
any other ground than a willful denial of justice, or a corrupt
perversion of judicial proceedings for the purpose of wrong or
oppression.' (Wharton's Digest, sec. 203, i^. 505.)
"Mr. Cass, Secretary of State, in 1858, said:
" * Every independent state has the right to regulate its in-
ternal concerns in its own way, taking care to avoid giving
just cause of offense to other nations. In almost all the
European states there are police and administrative powers
exercised by the governments, which enable them to exert a
very arbitrary authority over residents, whether natives or
foreigners. When our citizens enter those countries, they en-
ter them subject to the operation of the laws, however arbi-
trary these may be, and resi)onsible for any violation of them.'
(Wharton's Digest, sec. 203, p. 505.)
" Mr. Blaine, Secretary of State, stated, November 25, 1881 :
"'Every person who voluntarily brings himself within the
jurisdiction of the country, whether permanently or tempo-
rarily, is subject to the operation of its laws, whether he be a
citizen or a mere resident, so long as, in the case of the alien
resident, no treaty stipulation or principle of international
law is contravened.' (Wharton's Digest, sec. 203, p. 507.)
"Mr. Frelinghuysen, Secretary of State, November 25, 1881,
says:
" ' If an alien, while within the United States, violates a law
here in force, he is liable to arrest and punishment according
to the local practice, and because of his foreign citizenship he
has no privileges or immunities other than those enjoyed by a
citizen of this republic' (Wharton's Digest, sec. 203, p. 507.)
" It is proper to say that these citations of authority have
been taken from the brief of the counsel of the United States.
Many other citations to the same effect might be added.
ARREST, IMPRISONMENT, AND DETENTION. 3269
" In view of tliese well-settled principles of public law it is
inenmbeDt upon the claimant to make it appear, before he can
maintain his claim, that palpable injustice has been done to
him or that he has been deprived of such a trial as a citizen
of the United States would have received if he had been ar-
rested under similar circumstances and charged with the com-
mission of a similar offense. There is no such allegation in
his memorial. On the contrary, it appears from his own
statement that he was arrested by order of the Attorney-
General of the United States upon suspicion that he had vio-
lated the neutrality laws of the United States; that he was
promptly admitted to bail; that the evidence against him was
sufficiently strong to justify an indictment by the grand jury;
that he w«as regularly tried, according to law, and acquitted
by a petit jury, under the instructions of the court, within six
months from the time of his arrest. He does not complain
that due process of law has not been observed in his case, but
that he has been tried for a violation of the neutrality laws,
of which offense he was not guilty according to the verdict of
the jury and the judgment of the court.
" We have been unable to find any precedent for this claim.
If it is a valid claim, then it would seem to follow that every
person charged with an offeuse against the laws and acquitted
may sue the state and recover damages. Every government
that institutes a criminal proceeding for the enforcement of
its laws would do so at its peril. No government could long
exist if such a doctrine should be recognized as sound. The
mere statement of the proposition is suflicient to demonstrate
its unsoundness. If this were a suit against a private individ-
ual for malicious arrest and prosecution it would be necessary,
in order to maintain the suit, to aver and prove malice and
want of probable cause. It is not charged in the memorial that
the Attorney-General was actuated by malice in ordering the
arrest, or that there was want of probable cause. It is fair
to presume that in the performance of an official duty he was
governed by the facts and circumstances as they appeared to
him. 'A public officer is not liable to an action if he falls into
error in a case where the act to be done is not merely a minis-
terial one, but is one in relation to which it is his duty to exer-
cise judgment and discretion even althougli an individual may
suffer by his mistake.' (Kendall v. Stokes, 3 Howard, 87.)
" But this is not a claim against the Attorney-General; it is
a claim against the United States; a fortiori malice and want
3260 INTERNATIONAL ARBITRATIONS.
of probable cause in the arrest and prosecution complained of
should be made to appear. Was there want of probable cause?
Probable cause is the existence of such facts and circumstances
as would excite the belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person
charged was guilty of the oftense. Were not the facts and cir-
cumstances disclosed in the memorial calculated to excite the
belief, or at least to warrant the suspicion, that the claimant
was engaged in violating the neutrality laws of the United
States? According to his own statement he came to the
United States as the accredited agent and representative of a
revolutionary party that was then attempting to overthrow the
government of Balmaceda, with which the United States were
at peace. He came for the purpose of purchasing the needed
arms and ammunition. In the progress of his narrative he
says:
" ^I accordingly bought from Messrs. Hartley & Graham, of
New York, five thousand rifles and two million cartridges.
" * As 1 did not have the funds necessary for the chartering
of a steamer that might bring them directly to Chile, I cabled
the Chilean Government at Iquique to send one of their
steamers to San Diego, California. In the mean time I arranged
the following plan: I shipped the arms and ammunition to San
Francisco, where they were put on board the American schooner
Robert and Minnie, which was towed to the Island of Catalina,
where she was to await the arrival of the Chilean steamer Ttatd.
Unfortunately the Itata was delayed two weeks, and although
she had instructions from me not to enter the port of San
Diego, but to await outside for orders, want of coal obliged
her to put into San Diego on May 3, 1891.
*'*The presence of the Robert and Minnie had in the mean-
time been discovered, and it was suspected that the Itata had
come to get the arms and ammunition which composed her
cargo.'
^^ In addition to these suspicious facts and circumstances, as
stated by the memorialist himself, showing secrecy in the
transaction on his part, it appears that he was regularly in-
dicted by a grand jury, sworn and impaneled in the district
court of the Un.ited States for the southern district of Cali-
fornia to inquire into all offenses against the laws of the United
States within the jurisdiction of that court. It is fair to pre-
sume that there was sufficient evidence before the grand jury
to justify the indictment found by them, and the indictment
itself is sufficient to show that there was probable cause. As
it appears upon the face of the memorial itself that the claim*
ARREST, IMPRISONMENT, AND DETENTION. 3261
ant was arrested upon the suspicion that he was engaged in
the violation of the neutrality laws of the United States; that
he was regularly indicted, tried, and acquitted in accordance
with the ordinary proceedings of courts of justice; that he
was subjected to no improper treatment while under arrest
and to no unnecessary delay in his trial, we are of opinion
that he has no legal claim against the United States for dam-
ages. If a citizen of the Uuited States, temporarily domiciled
in the Republic of Chile, should be arrested under similar cir-
cumstances upon a similar charge and in the ordinary course
of legal proceedings should be indicted, tried, and acquitted,
we apprehend his claim for damages would not be entertained
in the Chilean courts. If a citizen of the United States should
be subjected to a similar prosecution upon a similar charge or
upon any charge in any of the courts of the United States, his
suit for damages against the Government of the United States
would be wholly unavailing. Certainly it can not be contended
that the claimant, a citizen of Chile, and uuder obligations to
obey the laws of the United States while temporarily residing
here, is entitled to any greater immunity or protection than
would be accorded to a citizen of the United States under like
circumstances.
^^ It is to be regretted that the claimant, an honored citizen
of Chile, has been subjected to annoyance and loss; but we
are of opinion that the facts stated in his memorial are not
sufficient under the treaty or in law to entitle him to recover
damages against the United States. The demurrer is sus-
tained and the claim is dismissed.
Opinion of Mr. Goode, for the commission, case of Ricardo L. Trumbull
Y. Chile, No. 28, United State8and Chilean Claims Commission, convention
of August?, 1892.
G. L. Borden, a citizen of the United States,
Borden'i Caie. master and seven eighths owner of the Ameri-
can whaling bark Hope On, shipped in Novem-
ber 1882 a Chilean sailor, who, having become mutinous, and
having assailed members of the crew with a knife, was sev-
eral times confined in irons. On January 14, 1883, the sailor,
it was alleged, with his consent, was put ashore on the Island
of Juan Fernandez, at a point " about two miles from the
settlement," and with ^^ food sufficient to maintain him until
he could reach the settlement." March 27, 1883, the bark
called at Talcahuano to refit for an arctic voyage, but on
32G2 INTERNATIONAL ARBITRATIONS.
April 9, when she was nearly ready for sea, the master was
notified that she would not be allowed to depart. April 13
the minister of marine of Chile ordered the bark to be de-
tained till further orders; and on the 16th of the month Bor-
den was arrested and, after a few hours' detention, taken be-
fore a judge at Concepci6n. He gave bail and returned to
Talcahuano. Ten days afterward he was ordered to appear
at Concepcion, which he did. May 15 an order for the release
of the bark was given at Borden's instance, but it was counter-
manded, and the bark was not permitted to depart till May 21,
when she sailed under a new master. This master " proved to
be incompetent,'' and the cruise a failure; and in the autumn of
1893 Borden discharged the crew " and sold the bark and out-
fits for what he could obtain, at a large loss." He himself
"remained at Talcahuano until the 27th of June 1883, await-
ing notification of his trial, but received none." He then
returned to his home in the United States. He claimed dam-
«ages (1) for his arrest and expenses, and (2) for the detention of
his vessel, amounting to $20,130.69.
It appeared by the evidence that no legal proceedings were
ever instituted against the bark. The master was arrested for
barbarously maltreating the Chilean sailor and for casting him
ashore on an uninhabited part of Juan Fernandez Island.
It appears, however, that the sailor did not appear as a com-
plainant, but that the prosecution was instituted by the cap-
tain of the port of Antofogasta, on the report of the lessee of
the island, to whom the sailor told his story.'
The damages for the detention of the ship were estimated
at $250 a day, which included $50 for wages, $10 for provi-
> Mr. Shields, tho agent of tho United States, in his final report (p. 70),
says:
"The record shows that the district attorney of Chile gave as his opin-
ion to the court that it had no jurisdiction of tho crime charged against
Borden, and that thero was no crime against ChUean law committed hy
him. The case seems to have been appe.iled to tho supreme court of
Chile, which held that the court at Concepcion had no jurisdiction of the
case, and remanded it to tli«» court at Valparaiso for further proceedings,
where the case rested for three years, until a demand by the United States
Government for information in regard to it was made, when the papers
were found amoug the private ])apers of tho judge, never having been
docketed. Every efibrt was then made by the Chilean Government to per-
fect the procee<lings against thc^ claimant, without success; the district
attorney state<l to the couii; that his honor absolutely lacked data to estab-
lish the existence of anv offense."
ARREST, IMPRISONMENT, AND DETENTION. 3263
sioDS, $6.66 for iuterest and iiisuraiice, aud the rest tor the
loss of the use of the vessel. No evidence was offered by
Chile on the subject of damages.
The contentions of the parties before the
Axgaments. commission have been stated by the agent of
the United States * as follows :
" It was contende<l on the part of the United States that as
there was no complainant and no complaint to serve as the
basis for the prosecution, and also no crime against Cldlean
law alleged, the proceedings were void; that maltreating a
sailor on board a United States vessel by the captain on the
high seas or within the territorial jurisdiction of Chile is not
an offence against the law of Chile nor justiciable in the
Chilean courts. (See Field's International Code, p. 433 ; Kent's
Commentaries, p. 204; Pelletier's case (against Hayti), p. 102;
United States against Palmer, 3d Wheaton, 610; Opinions of
the Attorney-General of the United States, vol. 8, p. 79.)
"A crime committed on board a foreign merchant vessel, in
which members of the ship's crew are alone concerned, is not
within the jurisdiction of the local courts unless the crime
involves a breach of the local peace. (Wildenhus's case, 120
United States, 1; Ortolan, Diplomatic de la Mer, 1, 450; Jour
nal du Droit International Prive, 1876, ]>. 413.)
** On the question of damages for the detention of the ves
sel, the following cases were cited: The Baltimore, 8 Wall
377-385; Cayuga, 14 Wall. 270; Potomac, 105 U. S. 630; Por
ter, 5 Fed. Eep. 822; 8 Fed. Rep. 170; Brown v. Hicks, 24 Fed
Rep. 811 ; Parsons v. Terry, 1 Low. 60; The Nottinq Hill, 9 Pro
Div. 105-113; Parana, 2 Pro. Div*. 118; The Mary Steele, 2 Low,
370-374; The Resolute, 8 Pro. Div. lOD; Phillimore, pp. 112, 113
The Clarence, 3 Wm. Rob. 283-286; The Gleaner, 3 Asp. Mor
Law cas. 582; Morsden, Collision (2d ed.), p. 115; The James
Maury, Alabama Claims, Op. 47 ; Williamson t\ Barrett, 13 How
101; Walter Pharo, 1 Lowell, 437; Stro7nless, 1 Lowell, 153
Mayflower, 1 Brown, adm. 376; Transit, 4 Ben. 138; Swift t?
Brownell, 1 Holmes, 467; The Antelope, 1 Low. 130; Brown
V. Smith, 1 Low 547; Prates i\ Howland, 2 Low. 36; Hussey v
Fields, 1 Sprague, 394-396; Knight v. Parsons, t^t^. 279; 290
Bbls. Oil, ibid. 475; Baxter v. Rodman, 3 Pick. 435.
*' The brief of the agent of Chile claimed that Borden was
manifestly responsible for the landing of the sailor on the island
of Juan Fernandez, which was within the jurisdiction of Chile.
He practically admitted that Chile had no jurisdiction for the
acts of claimant on the high seas; that while an error may
have been committed by the authorities at Concepcion in at-
tempting to take jurisdiction of the case, the error worked no
injury to Borden; that the fact that the tribunal at Valparaiso
Sliields'8 Report, 71.
3264 INTERNATIONAL ARBITRATIONS.
made au order directing the police to search for witnesses
leads to the conclusion that that tribunal was of opinion that
the criminal code in Chile in some of its provisions was applica-
ble to the offense charged upon Captain Borden. In that view
of the case the proceedings at Valparaiso were by due process
of law, of which Captain Borden, neither for himself nor as an
owner of a large part of the Hope Ouj had any right to com-
plain; that the damages claimed were in large part conse-
quential damages, which by the rules of public and municipal
law are excluded from judicial consideration; that the owners
of the vessel can have no legal claim for compensation on ac-
count of what may have been due to the subordinate officers
and men. The claim, if any claim is found to exist, should
have been made by them for their respective shares in the
product of the voyage. The captain of the vessel would only
be entitled to his proportion, and what that is the commis-
sioners are without means of determining ; that by the natural
process of the voyage, if successful, the expenditure called the
outfit would be converted into what is known as the * catch' —
that is, the oil and bone obtained from the whales; that there
is no testimony tending to show what the condition of the ves-
sel was in respect to the outfit or in respect to the quantity of
oil and bone on board the vessel at the time of her arrival at
Talcahuano, hence there is no basis for any estimate of loss,
except for the vessel and its detention ; that claims for the loss
of the vessel or deterioration thereof in consequence of the
incapacity of Commander Seymour are consequential damages
and outside the jurisdiction of the commission,"
The commission, Mr. Gana and Mr. Goode
Award. dissenting as to different points, pronounced
the following decision :
^«In this case the memorialist bases his claim upon three
grounds :
"Ist. For personal damages, suffering, indignity,
and loss of time from the date of his arrest, April
16, 1883, to the date of his arrival at New Bed-
ford, August 20, 1883 $10, 000. 00
'* 2d. For a(;tual ca«h expenses paid by the claimant
in consequence of his said arrest and detention,
including passage home 943. 19
"3d. For damages- suftered by the claimant in re-
spect of his seven-eighths ownership of said bark
Hope On on account of the arrest, seizure, deten-
tion, and demurrage of his said bark from April
9, 1883, to May 21, 1883, 42 days, at $250 per day,
$10,500— seven eighths of $10,500 9, 187. 50
'*The majority of the commission, Mr. Commissioner Goode
dissenting, are of tlie opinion that the claimant is not entitled
to recover any damages on account of his personal arrest or on
ARBEST, IMPRISONMENT, AND DETENTION. 3265
account of actual cash expenses paid by him in consequence of
said arrest. While an error m<'iy have been committed by the
Chilean authorities in ordering the arrest of the claimant, it
does not appear that it was done maliciously, without probable
cause, or in disregard of due process of law. The decision of
the commission in dismissing the claim of Eicardo L. Trumbull
V. The United States is accepted as a precedent, which should
be followed in this case.
"On the other hand, the mjyority of the commission, Mr.
Commissioner Gana dissenting, are of opinion that the claim-
ant is entitled to recover damages on account of the arrest and
detention of the vessel. The principle is well established in
cases like the present that the loss of the use of the vessel is
the proper measure of damages, and that the loss of such use is
the loss of her ^probable catch' during her enforced absence
firom the fishing grounds.
"The testimony adduced by the claimant proves that on ac-
count of the detention of the vessel in port she lost forty-two
days on the cruising grounds, and that $250 per day is a reason-
able estimate of the damages thereby sustained. The respond-
ent government has offered no testimony in rebuttal on this
subject.
" Upon this basis the damages for the detention of the vessel
amount to $10,500, and the claimant being the owner of seven-
eighths of the vessel is entitled to recover $9,187.50, and judg-
ment may be entered accordingly."
Gilbert Bennet Borden v. ChiJej United States and Chilean Claims Com-
missioni convention of August 1, 1892.
2, By Military Authority.
December 23, 1829, the American schooner
Case of the "Galaxy." Galajcy entered the river Tabasco, in Mexico,
intending to proceed up the stream to the
city of that name. In consequence hot^-ever of " political dis-
turbances,^ she was not permitted to do so. Leaving the
schooner, then at the mouth of the river, the charterer pro-
ceeded in person to the city of Tabasco, ninety miles away,
and procured a cargo of logwood. But he was not permitted
to take it away. On the contrary, he was detained by the
authorities, aiul the schooner was kept at the mouth of the
river from January 1, 1830, till the 5th of the ensuing month,
by order of the military commandant of the* city of Tabasco,
''in consequence of politi(jal dissensions in which the said
commandant was engaged with the commandant of the prin-
cipal bar." Such was the statement made in a certificate by
the collector of the municipal maritime custom-house at
3266 INTERNATIONAL ARBITRATIONS.
Tabasco. The vessel was at the time chartered by William H.
Shaw, a citizen of the United States, who presented a claim
before the commission for damages. The owners of the vessel
also x)resented a claim for her detention, but as there was no
proof that she was injured by the detention, and as they had
a claim against Shaw, the charterer, for her use, the American
commissioners rejected their claim. They awarded compensa-
tion to Shaw, both for the detention of the vessel and for his
own detention. The umpire sustained them, and on February
23, 1842, allowed Shaw the sum of $2,057.20.
JFilliam H, Shaw v. Mexico: Commisflion iiuder the convention between
the United States and Mexico of April 11, 1839.
Robert T. Brent, a citizen of .the United
Brent^iCase. States, domiciled at Boonville, Missouri, in
July 1846 introduced five wagonloads of goods
into Santa Fe, New Mexico, upon which he paid duties amount-
ing to $3,250. On July 14 he set out with a part of the goods
in two wagons for Chihuahua, and while on the way, at a place
called the Sand Hills, south of Paso del Norte, " first received
certain intelligence of the war then existing between the
two countries." Arriving at Chihuahua about the 10th of
September, he was immediately required to rejwrt himself to
the prefect of the place and to sign a pledge not to leave the
city without permission. He applied for passports, which
were refused him; and until about the 1st of November he
was required to report himself daily to the prefect In Jan-
uary 1847 he was confined in prison for fifteen days, " with-
out any reason being assigned for it, by the authorities, when
he was set at liberty." He further alleged that he was de-
tained at Chihuahua until the arrival there of the American
troops about the 1st of March 1847, a period of about six
months; that in consequence he sutt'ered greatly in his credit
and his business; that he wa« prevented from paying certain
notes at maturity, having eventually to pay about $1,000
interest on them ; and that his personal expenses, while he was
detained, amounted to about $412.50. He claimed these sums,
together with J?3,000 for injuries to his business and $5,000 for
violation of his personal liberty. The commissioners under
the act of Congress of March 3, IS^IO, to whom the claim was
presented, said:
*'At the time of the restraints im])osed upon the memorialist
at Chihuahua a public war existed between the Tnited States
Mexico and an American army was about to invade that
ARREST, IMPRISOIKMENT, AND DETENTION. 3267
state. A citizen of one country, which- is at war with another,
found in the territory of the latter, unless protected by some
treaty stipulations between the nations, may be regarded as
an enemy; and although, agreeably to the milder usages of
modem times, he may not be justly treated with the same
rigor as combatants taken in arms, he is nevertheless liable
to restraints, and may be prevented from leaving the country.
Otherwise, the most important information touching the means,
plans, and military operations of the couutry where he is found
may be communicated to its invading enemy. The United
States has on former occasioned exercised this right and pro-
vided for it by law (see act July 6, 1778, ch. 66, entitled * An
act respecting alien enemies. Stat, at L., vol. 1, page 577.')
<' The memorialist contends that the injuries of which he
complains were in violation of the twenty-sixth and the four-
teenth articles of the treaty of 1831, between the United States
and Mexico. It will be seen, however, upon reference to the
treaty, that the twenty-sixth article relates only to persons
residing in the country, and secures to them the right of re-
maining there for limited periods. It makes no provision for
those who may go there after the commencement of hostilities.
The fourteenth article has reference only to a state of peace;
and may be considered as abrogated or suspended by a state
of war.* The board does not perceive by any of the proceed-
ings complained of that Mexico has violated any obligation
imposed upon her by treaty, or by the law of nations.''
Opinion of Messrs. Evans, Paine, and Smith, commissioners, act of March
3,1849.
The claimant asked compensation for being
Ckittei's Case. Summoned or arrested several times and taken
before the military authorities in Mexico dur-
ing a state of war, the cause of the arrest being the desire of
the authorities to purchase a piece of property which they
wanted to use. The umpire refused to make an award to the
claimant. He said that such occurrences were common in a
state of war, and no one ever thought of making claims tor
them.
Thornton, umpire. Christian JP. Gaiter v. Mexico, No. 343, convention of
July 4, 1868, MS. Op. IV, 457, VII, 416.
Claimant suffered with others a detention in
Sumpter's Case, consequence of a general military measure.
Held, that there was no ground of claim.
Thornton, umpire, June 21, 1876, Jesse A. Stimpter v. Mexico, No. 869,
convention of July 4, 1868, MS. Op. v. 478.
' Article XIV. provided that the contracting parties should give their
*'Hpecial protection to the persons and property of the citizens of each
other," etc.
5627— VOL. 4 3
r
3268 INTERNATIONAL ARBITRATIONS.
The claimant, a native citizen of the United
Edward^! Case. States, was employed as an engineer on a sugar
estate near Manzauillo, in Cuba. On the out-
break of the insurrection in October 1868 and the establishment
of martial law in Manzanillo, the claimant was, through the in-
fluence of his employer, provided with a pass from the governor
for his free entrance and exit in attending to the business of the
Estate. On November 22, when in Manzauillo on business, he
was arrested by the commissary of police, and without exam-
ination or information as to the charges against him committed
to prison and confined in a close cell. He was not allowed com-
munication with the acting United States consular agent until
November 30. On that day he was arraigned before a military
commission on the charge of connivance with the insurgents and
of carrying drinkables in abundance to and from the town,
which could have no other object than for the insurgents.'' The
officer who presided at the trial informed the acting consular
agent of the United States that the claimant's ^^ innocence was
fully established," that he saw ^^no reason for his imprison-
ment," and that on the following day he would send the pro-
ceedings to the governor, with a ^^recommendation that he be
set at liberty." The governor received the proceedings on the
1st of December, but he forwarded them to the Oaptain-General
at Havana, and kept the claimant in prison till the 2d of Janu-
ary 1869, when he was released. It was afterward discovered
that some of his effects had been appropriated by the Spanish
soldiers, who had visited the, estate during his imprisonment.
On the 15th of February 1869 the claimant, through an
attorney, presented a memorial to the Department of State,
in which he demanded indemnity in the sum of $50,000.
The Department, in acknowledging the receipt of a dis-
patch of the vice consul-general at Havana in which the cir-
cumstances of the claimant's arrest and imprisonment were
detailed, had said :
" Howeverinnocenttheconduetandpurposesof Mr. Edwards,
the fact that he was frequently passing and repassing between
the lines of the insurgents and a town garrisoned by loyal
troops exposed him to such necessary suspicion as to excuse
his temporary detention for the purpose of examining the case.
Many foreigners were subjected by the agents of this govern-
ment to the exceptional police of war during the late rebellion,
and it is indisposed to encourage any claim which could be
cited as a precedent against us for vindictive or exaggerated
ARREST, IMPRISONMENT, AND DETENTION. 3269
damages. Tbere are some inconveniences attending residence
in a country which is the theater of rebellion, which are prac-
tically irremediable, and must be borne as a share of the com-
mon misfortune. It is to be hoped, therefore, that Mr. Ed wards
will be sufficiently moderate in his demands as to justify the
hope of a speedy settlement when tranquillity shall be restored
toUuba.
The arbitrators awarded the claimant the sum of $5,000 in
American gold.
Jamea M, Edwards v. Spain, No. 5, December 20, 1873, Spanish commis-
sion, agreement of Febmary 11-12, 1871. See also S. Ex. Doc. 108, 41
Cong. 2 sess. 203, 204.
" Henry Story, a citizen of the United States,
story's Csss. in order to arrange some outstanding business,
settled with his family in a district of the Is-
land of Guba lying between the lines of the Spanish troops and
the Cuban insurgents. He was thus fully aware that he ex-
IK>sed himself to all the casualties necessarily incident to the
de facto war in those regions. He claims for the destruction
of two houses on the Vegas, and of their contents, for the
disappearance of some forniture in a town house in Puerto
Principe, and for the ill treatment to which he was sub-
jected. • • ♦
<^ With reference to his claim for damages on account of ill
treatment, it appears from the documents in this case that he
and his family were arrested by the Spanish troops and sub-
jected to treatment not required by any military necessity, nor
justified by the political behavior of the claimant or of his
family. This is proved by the fact that the governor of Puerto
Principe, before whom they were brought, declared them inno-
cent, and released them. The manner in which Story and his
family were arrested prevented them from saving some of his
I>ersonal property.
** As the ill treatment was not required for the purx)ose of
investigating his case, it constituted a wrong for which be has
just claim to an indemnity to the extent that such treatment
exceeded the measure of the hardships to which he had un-
avoidably exposed himself by settling in that part of the
island.
" By modern principles of international law, a foreigner vol-
untarily exposing himself to casualties growing out of war
waged to expel foreign invasion or to suppress a rebellion
must submit to the hardships they impose; but the extent and
3270 INTERNATIONAL ARBITRATIONS.
character of these hardships must be limited by the actual
necessity of inllictiug them in order to carry on military
operations.
<^ In the case of Story, the hardships he suffered, so far as
they were to secure an investigation of his case, give him
no claim; but those that were wantonly and unnecessarily
inflicted give him a clear right to indemnity under the agree-
ment between Spain and the United States of February 12,
1871.
<' In consideration of the preceding facts and arguments the
umpire is of opinion —
<< 1st. That the claimant hiis no sufficient title to an award
for the destruction of the houses and their contents, as he has
not proved himself to be the legal owner of them; and
" 2d. That the claimant having been ill treated by the Span-
ish troops to an extent not required to secure his arrest and
the investigation of his case, and having been afterward
declared innocent by the competent Spanish authority, is enti-
tled to an indemnity, in which may be comprised an allowance
for the loss of some personal property which he might have
saved from destruction if the proceeding toward him and his
family had not been of a too great severity.
" It seems to the umpire that $1,200 is sufficient to cover the
wrong for which said Story is entitled to an indemnity under
the agreement of February 12, 1871, and the umpire awards
that amount accordingly,''
Baron Lederer, umpire, January 16, 1874, Henry Story v. Spain, No. 1,
Spanish Claims Commission, agreement between the United States and
Spain of February 11-12, 1871.
^' In the case of Oideon Lowe, Charles Curry^
^^ ''ott^* ^""^ ^^ '^^'*^ ^arf^Mw V. Spain, Ko. 14, it is my
opinion —
" 1. That the master of the schooner Ariet^ does not explain
satisfactorily how, having sailed from Key West, bound to
Sisal (Yucatan), the said ship was found inside the Colorado
reefs, within the maritime jurisdiction of Spain, a long distance
from the direct course; that there was sufficient reason to sus-
pect that the Arietes was a wrecker engaged in illegal busi-
ness, and consequently that the commander of the Spanish
schooner of war Omega was justified in taking her to port, but
that the Spanish authorities neglected to comply with treaty
stipulations in not referring immediately the examination of
the case to a competent court; that therefore the claimants
ARREST, IMPRISONMENT, AND DETENTION. 3271
have H right to recover damages to the amount of $75, with
interest at 6 per cent from the 10th of January 1869 to this day.
"That in towing the Spanish schooner of war Ofnega, the
Arietes did to the Spanish ship a service, for which the claim-
ants have a right to receive remuneration to the amount of
$100, with Interest at 6 per cent a year from the 10th of January
1869 to this day."
M. Bartholdi, umpire, December 12, 1874, Spanish Claims Commission,
agreement of February 11-12, 1871.
Gharles Jemot, a citizen of the United States,
Jemotr • Caie. "wks part owner of a hacienda situated near
Trinidad de Cuba, and between two camps of
insurgents. In May 1869 he was arrested there on a charge of
conveying information to the insurgents. On this charge he
was tried by a court-martial and sentenced to ten years' im-
prisonment. Through the intervention of the United States
consul he was released on condition of leaving the island with-
out permission to return. The arbitrators allowed him $5,000
with interest from December 4, 1869. The grounds of this
award are not stated. It was on or about December 4, 1869,
that he left Cuba under the conditions of his release.
Charles Jenioi v. Spain, No. 108, April 8, 1876, Spanish Claims Commission,
agreement between the United States and Spain of February 11-12, 1871.
The claimant, a native of Cuba, was natu-
Fritot'i Case, ralized in the United States in 1860. On Feb-
ruary 11, 1869, ho was arrested in Cuba as a
suspected and dangerous person. He was imprisoned until
March 12, when he and other citizens of the United States
were released at the request of the consul-general of the United
States at Havana and Admiral Hoff. A few hours after his
release he was rearrested by a Spanish officer on the supposi-
tion that he had escaped, and was coniined until the following
day, when, having been again released, he went on board a
United States man-of-war, by which he was brought to the
United States.
It was contended by the advocate for Spain that the claim-
ant when arrested was not known to be an American citizen,
and that it did not appear that he had ever made known his
nationality until an application was made for his release on
that ground. Moreover, there was at the time of his impris-
onment an insurrection in Cuba, in which the power of arrest
had to be freely exercised in a manner coextensive with
3272 INTERNATIONAL ARBITRATIONS.
Decessity. Martial law prevailed, and the daimant, it was
contended, was subject to it. ( United States v. Bielcelman^ 92
U. S. 620, 526.) The treaty of 1795, said the advocate for Spain,
allowed the claimant to employ counsel and to have his case
conducted according to the regular course of proceedings usual
in such cases, and there was no allegation or proof that any
such privilege was denied him. He left the island, as it was
maintained, voluntarily.
The claimant demanded $250,000. There was evidence to
show that at the time of his release he was earning $3,000 a
year. The arbitrators allowed him $500.
Henry Fritot v. Spain, No. 35, March 16, 1873, Spanish. ClaimB Commission ;
agreement between the United States and Spain of Febrnary 11-12, 1871.
The claimant, a native of Ireland and a nat-
Xontgomery's Case, uralized citizen of the United States, was
employed in 1870 as an engineer on a sugar
plantation in Cuba. June 26 he was arrested by the military
authorities for insolence or want of respect to Colonel Verges,
governor of Guantanamo, "the chief of operations in the
field," who visited the plantation during the day, and whom
the claimant on that occasion inadvertently (as he alleged)
omitted to salute. The claimant was confined for three or
four days, when he was reprimanded and released without
trial. In consequence of his arrest and imprisonment, he lost
his position as engineer, lie claimed damages to the amount
of $22,090. The arbitrator for the United States awarded
him a year's salary as engineer at $1,000, with interest at 8
-per cent from the day of arrest till final payment of the award.
The arbitrator for Spain thought it clear, from the claimant's
own statements, that he " was guilty of some want of respect,
whether intentional or not, to an officer in the field in a time
of insurrection and public danger;" that the only facts proved,
on which Spain could be held liable, were "that he was
arrested under circumstances of perhaps unnecessary hard-
ship, and that he was detained three or four days instead of
twenty-four hours, which, under the circumstances, would have
been a reasonable time;" and that the sum of $500 would be
" an ample indemnity." The umpire allowed $1,000 without
interest.
Case of William Montgomery, No. 8, Span. Com. (1871), July 12, 1880.
ARREST, IMPRISONMENT, AND DETENTION. 3273
The claimant, a nataralized citizen of the
UMthMd&n Caie. United States, was arrested in Havana in
Jnly 1869 for bringing prohibited papers into
Caba. Havana was at the time under martial law, and any
correspondence with insurgents was specially prohibited by
military orders. The claimant had in his possession cer-
tain bonds or certificates which were given to him by an
escaped Cuban insurgent in New York, to be delivered to a
house in Cuba. He was also the bearer of several letters from
the family of the insurgent in question, and of a letter from a
young man in IN'ew York to his father in Cuba, expressing devo-
tion to the cause of Guba, and a hope to serve her in the diplo-
matic line. After a detention of three days the claimant was
released, but was informed that the proceedings against him
would not be dismissed. He then desired permission to leave
the country, which was granted on condition that he would not
return while the existing condition of things in Guba contin-
ued. Subsequently he asked if he could remain to finish his
business, and was told he could stay a reasonable time. He
lefb Guba about the middle of October 1869, without having
received from the government any order of expulsion. He
made the following claims: For value of goods in his store in
Havana, $40,000; for goods left in the custom house, $20,000;
for debts which he lost through his expulsion, $10,000; for
loss of power to do business, $50,000; for personal sufferings,
$50,000; and as he claimed interest on all these sums at 8 per
cent, his claim at the time of its hearing amounted to upward
of $300,000. The umpire rendered the following decision:
** The claimant in this case ♦ ♦ ♦ complains that he was
illegally arrested when he went to Havana from New York in
July 1869, in order to settle some old affairs before going to
Pa'*a, B*"^!, where he was to establish himself in business.
He intended to return to New York in August. He was ar-
rested in Havana on July 28, and was imprisoned from about
4 o'clock on Wednesday afternoon till about 1 o'clock tbe next
Saturday, when he was released from confinement. A suspi-
cion that he was the bearer of certain papers and correspond-
ence which the law in force in Guba at the time did not permit
him to bear, and which papers and correspondence were liable
to seizure, was the cause of his arrest and imprisonment. Such
correspondence was found in his possession, and in consequence
there was sufficient ground for his temporary imprisonment.
**The correspondence found was not of a political character,
but it was prohibited by military orders to carry even private
>
3274 INTERNATIONAL ARBITRATIONS.
letters from insurgents, and as a violation of the law had been
committed, the Spanish authorities .had a right to proceed
against him, but with due regard to the reservations provided
in the treaty of 1795 in favor of American citizens. The Span-
ish authorities declared after liis release that the proceedings
would be continued, and that the charge was the bringing of
political correspondence irom members of the Cuban Junta in
New York, in which it was said that the claimant had the
writer's confidence, and that he could be spoken freely with,
but after some conferences with the American consul-general
they gave the claimant the choice either to depart within a
certain time, which he found prudent to do, or to remain in
Cuba and take his trial on the above charge.
"The principal evidence produced by Spain as proof of this
charge is a letter from a young gentleman to his father in
Cuba, expressing great enthusiasm for the cause of Cuba, and
his hope to serve her in the diplomatic line. He gives inci-
dentally an account of some plans of the New York Junta to
establish diplomatic relations with foreign powers. He says
he has some hope to be employed as secretary of one of the
missions, and asks his father to send him in a covert way his
opinion whether he ought to accept. This letter is, in the opin-
ion of the umpire, no sufficient justification of the charge, by
which the claimant was frightened away, and he is entitled tx>
some indemnity.
" There is no evidence that any property belonging to the
claimant was ever seized by administrative embargo. Some
goods in a store were seized in August 1869, and it is contended
that this seizure was illegal; but the claimant's own testimony
tends to prove the contrary, because he says that the Ameri-
can consul-general, Mr. Plumb, to whom he complained, refused
to interfere, and because it is not credible that Mr Plumb
would have omitted to interfere and to report the case to the
Department of State if this had been a case of administrative
embargo. The goods in the store were finally appraised at
$4,000, and sold in 1871 for the benefit of creditors. It is prob-
able that they were seized by judicial process already in
August 1869.
" The umpire decides that an indemity of $6,000, with inter-
est at 6 per cent a year from the 16th of October 1869 to this
day, be paid on account of this claim."
Count Lewenhaupt, umpire, December 28, 1880, John A. Machado v. Spairif
No. 84, Spanish Claims Commission, agreement between the United States
and Spain of February 11-12, 1871.
On April 3, 1870, John B. Powers, a citizen
Powen*! Case, of the United States, who was in charge of
a trainload of troops in Cuba as engine-driver,
was arrested on suspicion of having voluntarily thrown the
train from the track in order to prevent the troops from
ARREST, IMPRISONMENT, AND DETENTION. 3275
joining another body of soldiers who were engaged in a
skirmish with insurgents. He was confined in prison by the
military authorities till May 18, a period of forty- five days,
and for a week after his trial and acquittal (on May 11) by a
military court. His innocence was in fact well established by
a preliminary inquiry held on the 8th of April. He claimed
$12,000 damages for illegal arrest, ill treatment in prison, and
the robbery of a watch and some money while he was in
custody.
The arbitrator for the United States, Mr. Stewart, held that
the arrest and imprisonment of the claimant by the military
authorities was a violation of the guaranties of the treaty of
1795, and for this, as well as for the ill treatment and robbery,
and the loss of wages during a period of enforced idleness re-
sulting from the arrest, be awarded the sum of $6,487, with
interest at 6 per cent.
Mr. Brunetti, the arbitrator for Spain, thought that the
claimant's arrest was legal; that while all persons in districts
in a state of siege where the usual civil rights were, as in the
present case, suspended, were subject to military authority,
the claimant was clearly so subject, being at the time of his
arrest engaged in the transportation of troops and under mili-
tary command ; that the alleged ill treatment and robbery were
not sufficiently proved, but that the claimant's detention was
unnecessarily long and exceeded the requirements of the case;
that he should have been promptly tried, say within two weeks;
that damages should be allowed him to the amount of $500 for
loss of wages during his unnecessary imprisonment, but that
nothing should be allowed for the loss of his employment, both
because that loss would have occurred if he had been imprisoned
for only two weeks, and because he did not profit by an oflfer
made to him during his arrest of release on bail.
The. umpire held that under the circumstances there was
sufficient ground for the claimant's arrest, and that the charges
of ill treatment and robbery, which rested solely on the claim-
ant's statements, were not sufficiently proved ; but he also held
that the claimant's innocence should have been considered as
clearly established by the preliminary inquiry of the 8th of
AprU, and that he should be allowed $4,000, without interest,
for being illegally imprisoned for forty days.
Count Lewenhanpt, umpire, February 24, 1881, John E. Powers v. Spain,
No. 106, Spanish Commission, agreement of February 11-12, 1871.
3276 INTERNATIONAL AEBITKATIONS.
By the protocol signed at Madrid on Janu-
Case of Be Luna, ary 12, 1877, by the minister plenipotentiary
of the United States and the minister of
state of Spain, for Mie purpose of terminating amicably ''all
controversy as to the eftect of existing treaties in certain mat-
ters of judicial procedure," it was declared by the minister of
state that no citizen of the United States residing in the Span-
ish dominions, charged with sedition, treason, or conspiracy,
or any other crime whatsoever, should be ''subject to trial by
any exceptional tribunal, but exclusively by the ordinary juris-
diction, except in the case of being captured with arms in
hand."
On or about March 24, 1880, Antonio Bellido de Luna, a
citizen of the United States, was arrested by the military
authorities in Cuba for alleged complicity in an insurrectionary
plot. He gave notice of his American citizenship when he
was arrested, but did not furnish the proofs of it required by
Spanish law till April 24, 1880. He was kept in strict military
arrest, without the privilege of communicating with anyone,
till the 17th of the following June, when he wa« turned over
to the civil authorities on an old charge of forgery. On the
18th of June he was ordered to be released on this charge on
giving $1,000 bail, which he was unable to furnish; and he
remained in prison till October 12, 1880, when he died. A
claim was made by his administrator for damages for his
alleged wrongful imprisonment.
The American arbitrator, Mr. Lowndes, held that the im-
prisonment prior to April 24, 1880, when proper proof of citi-
zenship was produced, and after June 17, when the prisoner
was turned over to the civil authorities on the charge of forgery,
was lawful, but that his imprisonment by the military author-
ities between those dates was in violation of the protocol of
January 12, 1877. For this Mr. Lowndes allowed the sum of
$5,000, and in so doing he referred to the fact that the deceased
left no wife or child or other person dependent upon him, his
brother being his distributee. The Spanish arbitrator thought
that the claimant was entitled to an award of $540.
The umpire. Count Lewenhaupt, awarded $3,000 without
interest.
De Lunaj administrator, v. Spain, No. 138, November 16, 1882, Spanish
Claims Commission, agreement of February 11-12, 1871.
ARREST, IMPRISONMENT, AND DETENTION. 3277
The claimant, a naturalized citizen of the
Casanova's Case. United States, was arrested near Havana by
the Spanish authorities on the night of March
30, 1869. In reply to a request of the vice-consul-general of
the United States, to be informed of the reason for the claim-
ant's arrest, the political secretary said that it was done at
the instance of the fiscal or prosecuting officer, but assigned
no cause. It was subsequently ascertained that his arrest was
connected with an affair then under investigation. After an
imprisonment of twenty days he was released, and through
the intervention of the vice-consul-general of the United States,
a passport was given him to leave the island. The arbitrators
were of opinion that the claimant's arrest and imprisonment
constituted, under the circumstance narrated, an injury for
which he was entitled to damages. Moreover, during the
month of April his property was embargoed for from twenty to
thirty days. This the arbitrators also held to be a wrong, for
which the claimant was entitled to damages, though the evi-
dence did not enable them to allow more than nominal dam-
ages. They awarded him in all $6,000 in gold.
Ynooencio Casanova v. Spain, No. 25, December 26, 1882, Spanish Com-
mission, agreement of February 11-12, 1871. See also 8. Ex. Doc. 108, 41
Cong. 2 ses. 187.
The claimant, for refusing to pay a certain
Xontejo'i Case, sum of money that was demanded of him as
rent for an embargoed house, was arrested on
a charge of disloyalty and was tried for that offense before a
court-martial. After his arrest the authorities at first refused
to admit him to bail. He was imprisoned, in all, thirty-nine
days. He claimed damages for his imprisonment and trial in
violation of the treaty of 1795, as well as for the losses result-
ing from his being prevented from fulfilling certain agreements
in relation to the improvement of his sugar estate. He also
made a further claim for damages because of the breaking up,
as a result of his imprisonment, of a real estate speculation in
the city of New York. His claim amounted in all to $542,600.
* The umpire decided that, "as indemnity for illegal arrest
and imprisonment during thirty-nine days, the sum of $3,900,
without interest, be paid on account of this claim.^
Count Lewenhanpt, umpire, February 22, 1883, Manuel Antonio Montejo
T. Spain, "So, 315, Spanish Claims Commission, agreement between the
United States and Spain of February 11-12, 1871.
3278 INTERNATIONAL ARBITRATIONS.
" These claims were one hundred in number,
Oaiei before the ^^^ i]^q ^jQ^^al amount of damages claimed, in
Amerioan and ^j, ^^^ ^^^^^ $10,000,000, exclusive of inter-
British Claims ' .7777
Coxnxnisiion. ®®*j ^^» adding interest at the rate allowed by
the commission, say $16,000,000.
" In thirty-four of the cases awards were made in favor of the
claimants against the United States, in all amounting to
$167,911. In sixty- four cases these claims were disallowed;
one case was dismissed without prejudice for impertinent and
scandalous language used in the memorial, and one was with-
drawn by Her Majesty's agent by leave of the commission.
" The question early arose before the com-
ases 0 ®^fif . ' mission whether in case of death prior to the
Sherman, and Brain. «,,.«,
presentation of the claim of the party against
whose person the wrongful acts were alleged to have been
committed, the claim for such injuries was to be considered
as surviving to the personal representatives. This question
was raised by demurrer interposed on behalf of the United
States, in the cases of Edward McHugh, iNo. 357; Elizabeth
Sherman, No. 359, and Elizabeth Brain, No. 447.
'' In the case of Mrs. Sherman, No. 369, all connection be-
tween the injuries alleged and the death of the intestate was
disclaimed by the memorial.
" In the cases of Mrs. Brain, No. 447, and of McHugh, No.
357, there were allegations that the injuries complained of
caused or contributed to cause the death of the intestate; but
there was no allegation of any local statute allowing damages
in favor of personal representatives for a wrongful injury
causing death.
** On the i)art of the United States it was claimed that, as
by the common law both of Great Britain and of the United
States, claims for injuries to the person did not survive to the
personal representatives, such claims were not to be consid-
ered as within the submission by article 12. That the claims
which by that article were submitted could not be taken to
comprehend claims of a character . not recognized by the
municipal laws of either of the countries parties to the treaty.
" Her Majesty's counsel contended that the municipal laws
of the two countries were not to be taken as controlling the
rights of claimants in this regard; that claims for injuries to
ABREST, IMPRISONMENT, AND DETENTION. 3279
the person, whether such injuries caused death or not, were,
in the diplomatic intercourse of civilized nations, treated as a
proper subject of international reclamation in behalf of the
personal representatives of the person injured after his death.
He cited the practice of the commissions under the conven-
tion between the United States and ^N'ew Granada, of 10th
September 1857 (12 Stats, at L. 985), and under the treaty of
Guadalupe Hidalgo of 2d February 1848, between the United
States and Mexico (9 Stats, at L. 933, Art. 13).
" In the case of McHugh, No. 357, where the deceased died
unmarried and leaving only collateral relatives not dependent
on him for supx)ort, entitled to inherit, the commission unani-
mously sustained the demurrer and disallowed the claim.
<^ In the cases of Mrs. Sherman, No. 359, and Mrs. Brain,
No. 447, in both which cases the deceased left a widow and
minot children, the commission, Mr. Commissioner Frazer dis-
senting, overruled the demurrers.^
I Mr. Frazer read the following opinion :
''This is an international court, and the parties litigant before it are
nationsj not individuals.
'' Bat the treaty limits the jurisdiction of this tribunal. Not all matters
of difference between the two governments have been submitted to the
award of this commission, but only certain ' claims on the part of ^ their
respective citizens or subjects^ against the other government. The corre-
spondence which led to the treaty clearly shows that this means 'claima
of the citizens or subjects of either government, against the other gov-
ernment. (Sir Edward Thornton to Secretary Fish, February 1, 1871, and
Mr. Fish's reply of February 3, 1871. See Protocol I.)
''There must, then, be an individual who has a claim, aud a British or
American nationality, else we can not take jurisdiction.
"When the party whose person or property has suffered injury is dead,
how are we to ascertain who, thenf has such claim f The international law
is silent, giving no answer to this question. It is a matter regiiLited by
municipal law, and the law of the domicil of the deceased must be referred
to to ascertain who takes the rights which he had while in life; that is
to say, to ascertain who is the individual 'citizen or subject' in whose
behalf a claim exists after the death of the original claimant. If by the
municipal law of the domicil of the deceased nobody is entitled, then by
this treaty we can not make an allowance; for we can only do that where
there is an individual, British or American, who has a claim. We have no
authority to create a claimant. The treaty might have provided for such
cases, but it did not. It might have provided that proper damages should
be awarded against our government in favor of the other, for the wrong
to the nation, without reference to any question of the right of au indi-
vidual to such damages, leaving the government in whose favor the award
3280 INTERNATIONAL AEBITRATI0N8.
^^Itmaybe added that on final hearing on the merits the
claim of Mrs. Sherman was unanimously disallowed^ and
thoagh an award was made (Mr. Commissioner P>azer dissent-
ing) in favor of Mrs. Brain on account of property taken from
her husband, that award included no damages for imprisonment.
"In the case of Ernest W. Pratt, No. 6, it
Prates Ca«e. was alleged that the claimant arrived in New
York on a British mail steamer from Nassau
on the night of the 17th March 1865; that before leaving the
vessel he was arrested by order of General Dix, then in com-
mand of the United States forces in and around New York,
his luggage and papers searched, and he himself committed
to prison, where he was detained until the 25th June following,
a period of one hundred and seven days, when he was dis-
charged without trial.
"That he had received at Nassau, from the United States
consul there, an indorsement upon his discharge from the
steamship Oity of Bichmondj of which he had been first mate,
certifying that he was entitled to pass to the United States as
a British subject, which certificate had been given to him by
the consul with the assurance that it had all the effect of a
regular passport.
"It appeared that in October 1869 he had been about to
commence suit against General Dix to recover damages for his
false imprisonment, and his counsel having informed the Sec-
retary of State of the United States of his intention to bring
such suit, the Secretary, by letter to his counsel in answer,
suggested whether it was not expedient to < await the result of
the deliberation of this (the United States) government and
that of Great Britain upon a proposition for the establishment
or adjudication, among other things, of claims like that of
Mr. Pratt;' and the claimant averred that in conformity with
this suggestion he omitted to bring his suit against Gen-
eral Dix.
"The City of Richmond^ of which vessel the claimant had
i
should be made to determine, as it might see fit, what iudividual, if any,
should be benefited thereby.
'^Tho treaty of the United States with New Granada, und that with
Mexico, referred to in the argument, were of this character.
"Where the personal injury was to one domiciled cither in the United
States or Great Britain and now dead, there can be no citizen or subject
entitled to make claim; because, by the laws of both countries, the right
to damages is extinguished by the death of the person injured.'^
ABBEST, IMPRISONMENT, AND DETENTION. 3281
been first mate, had been engaged in January 1865 in carrying
crew, arms, and ammunition from London to the rebel cruiser
Stonewall J which received substantially her entire crew and
armament of small arms and ammunition by that means. On
parting with the Stonewall, the City of Richmond steamed to
Bermuda, and thence to Kassau, where her officers and men
were discharged, the claimant immediately proceeding to New
York, as above stated.
<<The claimant alleged in his memorial, however, that he
shipped upon the City of Richmond in good faith for an ordi-
nary voyage to the West Indies, and without information or
suspicion that ' her voyage was in any way connected with
either of the belligerent parties in the United States,' and
that, on finding her engaged in supplying the Stonewallj he
had protested to his captain, who paid no attention to his pro-
test, and required him to obey orders, on pain of arrest for
mutiny. The fact of the claimant's having been thus engaged
on the City of Richmond was reported to General Dix, and
this, in connection with his arrival in New York from Nassau,
constituted the grounds of his arrest by General Dix.
" On the part of the United Stiites it was claimed that the
fact of the claimant's having been actively engaged in aiding
the enemies of the United States, and that he immediately
thereafter came from Nassau, the principal port in the Atlan-
tic from which intercourse with the States in rebellion was
kept up through the blockade, to New York, justified the au-
thorities of the United States in arresting and holding him
both as a prisoner of war and as a probable spy.
" On the part of the claimant it was contended that there
was no proof of any offense committed by the claimant against
the laws of the United States, or the laws or principles of
neutrality. That even if he had voluntarily participated in
the cruise of the City of Richmond to equip the Stonewall, this
fact would have furnished no justification for his subsequent
arrest in New Y'ork, though it might have sufficed to determine
Her Majesty's government not to interfere for his protection
or indemnity. That the informality in his passport was caused,
if not contrived, by the United States consul at Nassau, and
that the assurance by that officer to the claimant that the pass-
l)ort was a sufficient one was in bad faith, and made with a
view to the claimant's arrest when he should arrive in the city
of New York, the consul having sent by the same ship a letter
3282 INTERNATIONAL AttlUTRATIONS.
addressed to General Dix, giving him the information apon
which he acted; and that the claimant's imprisonment was
unnecessarily and unjustly severe and prolonged.
<' The commission unanimously awarded to the claimant the
sum of $1,200.
"The cases of John C, Kahming, No. 7;
^^i^eii'a^iS^' Josepli Eneas, No. 126; and Joseph W. Binney,
' No. 352, were of substantially the same char-
acter, and were all decided at the same time. These claim-
ants were all domiciled in the city of New York, and there
engaged in trade. All were carrying on a considerable trade
with the port of Nassau, and were arrested on the charge of
carrying on an unlawful traffic with the enemies of the United
States under color of their trade with Nassau. Bahming
and Eneas were both arrested on the 31st December 18G3
and confined under military authority in Fort Lafayette,
until July 2, 1864, and then discharged without trial, on giv-
ing bonds for their appearance if called on for trial by the
United States authorities. Bahming had also been previously
arrested, on a charge of having shipped arms to the rebels, in
September 1861, and had then been detained as a prisoner in
Fort Lafayette for fifteen days. Binney was arrested on the
14th June 1864, imprisoned in Fort Lafayette under military
authority for five weeks, and then transferred to a jail in the
city of New York, where he was detained seventeen days
longer and was then discharged by General Dix without any
bonds or security required.
<^ In each of these cases it was alleged by the claimant, and
proofs were taken in support of such allegations, that the
claimants were innocent of the offenses charged against them;
that their imprisonment was unnecessarily and improperly
protracted; and that they received improper and unnecessarily
severe treatment during their imprisonment. Proofs were
taken on the part of the United States to show the charges
against them well founded, and to rebut the charges of im-
proper treatment. In each of the cases allegations were also
made of large resulting damages to the claimants by reason of
their imprisonment.
<^ Bahming, by his memorial, claimed damages $580,800, be-
sides interest. He was awarded by the majority of the com-
mission (Mr. Commissioner Frazer dissenting on the question
of amount merely) the sum of $38,500.
ARREST, IMPRISONMENT, AND DETENTION. 3283
'< Eneas claimed $720,000, besides interest, and was awarded
$1,540, all the commissioners joiniug.
" Binney claimed $100,000, besides interest, and was awarded
$5,390, all the commissioners joining.
^^ In each of the cases I am advised that the decision tamed
npou questions of fact, all the commissioners agreeing that
the proofs, though suilicient to warrant the arrest in each case,
did not leave the truth of the charges free from doubt; and
that the detention of the prisoners without trial was unneces-
sarily protracted.^
** In the case of John Garville Stovin, No. 23,
stovin'i Case, claimant was arrested at Cumberland, Mary-
laud, in October 1861 on the charge of disloy-
alty, in attending secession meetings in Cumberland, and
being the means of transmitting information to the enemy.
He was taken to Fort McHenry, there detained for about five
weeks, and discharged without trial. He alleged that his
business as a manufacturer at Cumberland was stopped, and
in effect destroyed by his arrest, and claimed damages $380,-
794.27, besides interest; including, however, some firewood,
hay, corn, and oats, alleged to have been taken and appropri-
ated by the United States soldiers. He alleged, also, ill treat-
ment while in confinement. Proofs were taken on both sides
on the question of his disloyal conduct, and it was contended
on the part of the United States that the facts of the case
justified his arrest as a disloyal person, openly giving aid and
comfort to the rebellion by his lauguage and expressions of
sympathy, in a village situated upon the frontiers of the
enemy's country, and where such conduct involved danger to
the military operations of the United States.
"On the part of- the claimant the charges of disloyal con-
duct and language were denied, and proof was adduced to
show him a law-abiding and peaceable inhabitant.
"The commission gave an award to the claimant of $8,300,
all the commissioners joining.
"In the case of Frank Bussell Eeading, No.
Beading's Case. 43, the claimant was arrested in the city of
Washington on the 6tli July 1864, that city
then being threatened by the rebel forces under General
I Mr. Frazer read an o])inion, discuHsiii^ the facto. Flu held that the
only ground of claim established by the claimant was that '^ ho was de-
tained too long.'' (Hale's Kuport, 241.)
6627— VOL. 4 4
3284 INTERNATIONAL ARBITEATIONS.
Early; was brought to trial before a military commission iu
Washington on the charge of uttering disloyal and treason-
able language in the District of Columbia when threatened
by the enemy, such language being calculated to give aid,
comfort, and assistance to the enemy. He was found guilty
by the commission, and sentenced to imprisonment for five
years, with hard labor, at the Dry Tortugas, or such other
military prison as the Secretary of War might select. Under
this sentence he was imprisoned at Fort Delaware from the
30th August 1864 till 1st June 1865.
*<On the part of the United States it was contended that
the military commission was a lawful tribunal;i competent for
the trial and punishment of military offenses, and having full
jurisdiction of the case of the claimant, both as to subject-
matter and person; that at the time of his arrest and trial
Washington was a city in military occupation, environed by
forts of the United States, occupied and defended by their
armies, the headquarters of the Commander in Chief of the
Army and Navy of the United States, and, as the capital of
the country, always a vital point of attack for the rebel forces,
and at this specific time the actual objective point of a vigor-
ous and determined attack by the enemy, who actually reached,
as their advanced post, on the 12th July, Fort Stevens, within
the limits of the District of Columbia and within four or five
miles of the Capitol.
^^That the offense charged against Beading was a purely
military offense, of which the civil tribunals had not cogni-
zance, and so was not within the principle held by the Supreme
Court in the case of Milligan (4: Wall. 2).
<<That Beading having appeared in person and by counsel
before the military tribunal, and having pleaded in chief, with-
out raising any question to the jurisdiction, could not be heard
to question the jurisdiction of the tribunal as to his person
merely; and that the commission having by law jurisdiction
of the subject-matter of the charge, the failure to object to
jurisdiction as to the person obviated all question as to their
complete jui'isdiction. The counsel for the United States cited
the case of Vallandigham (1 Wall. 243).
'^ On the part of the claimant it was contended that the mil-
itary tribunal had no jurisdiction whatever, and that the im-
prisonment of the claimant under it was wholly without
authority of law.
ABBEST, IMPRISONMENT, AND DETENTION. 3286
^' The commission gave a unanimous award in favor of the
claimant for $15,400.
"In the case of John I. Shaver, No. 51, the
Shavei's Caie. memorial alleged that the claimant, being at
the time domiciled in Canada, but traveling
in the United States on the business of the Grand Trunk
Eailway Company, a Canadian corporation, of which he was
an agent, was arrested at Detroit on the loth October 1861,
by direction of Mr. Seward, the Secretary of State of the
United States; that he was taken thence to Fort Lafayette, in
New York Harbor, and confined there, and subsequently at
Fort Warren, in Boston Harbor, until the 6th January 1862.
He alleged that by his arrest he was thrown out of lucrative
employment as agent of the railway company named; that by
it he lost the confidence of his employers and was unable to
regain lis position after his release; and that he suffered
large pecuniary losses in consequence. He claimed damages
$100,000.
*^ The arrest was made upon information communicated to
Mr. Seward that the claimant was engaged in conveying com-
munications between the rebels in Canada and those within
the insurrectionary States. The proofs failed to sustain the
charge, and it appeared that Mr. Kennedy, chief of police of
the city of New York, immediately after the arrest of the claim-
ant, reported to the State Department that he found no proofs
to warrant his detention, or to implicate him in any improper
communication with the enemy.
'^ The commission awarded the claimant $30,204, Mr. Com-
missioner Frazer dissenting od the question of amount only.
" In the case of Samuel G. Levy, No. 61, it
Levy's Case. appeared that the claimant, a resident of
Canada, on landing in Boston from a British
steamship from Liverpool in May 1864, was taken thence to
New York, and there detained for about eight days, on a
charge of being engaged in blockade running. At the end of
that time he was discharged upon giving bail for his appear-
ance within six months, if required. He alleged large conse-
quential damages by interference with his due attention to his
business, and by the enforced breaking of an engagement of
marriage in consequence of his arrest, and claimed as damages
£20,000.
'< The commission unanimously gave him an award of $930,
3286 INTERNATIONAL ARBITRATIONS.
**Iii the case of James Stott, No. 271, it
stottfs Case. appeared that the claimant, domiciled in the
State of Maine, was arrested at Dexter, Maine,
September 2, 1863, on the charge of being a deserter from a
cavalry regiment in the United States service; was sent thence
to the regiment from which he was alleged to have deserted,
at Warrenton, Virginia, where it plainly appeared that the
charge was unfoanded, it being a case of mistaken identity.
He was detained until the 9th of November 1863, and for the
purpose of making him some compensation as to loss of time,
and of giving him transportation back to his home, was mus-
tered into the United States service and discharged with the
pay of a private soldier for the time he had been detained, and
with transportation back to his home.
"An award was made for $775 in favor of the claimant, in
which all the commissioners joined.
" John I. Crawford, No. 79, was arrested in
Crawford's Case, the city of New York on the 10th of May 1864 ;
sent to Fort Lafayette and there detained un-
til the 27th of July 1864, when he was brought to trial before
a military commission in the city of New York, on the charge of
violation of the laws of war in passing through the military
lines of the enemy, first, from South Carolina, by way of Rich-
mond to New York; second, from New Y^ork again, by way of
Nassau and Wilmington, through the blockade, to South Car-
olina; and again from South Carolina, by way of llichmond, to
New York; and also by purchasing goods in New York, and
sending them thence through the lines to Richmond, Virginia.
He was convicted on all the specifications except that relating
to the i)urchasing and sending of goods, and was sentenced to
give bonds in such sum and with such sureties as should be
satifactory to the general in command of the department that
he would not visit, traffic, or correspond with the States in re-
bellion, nor give aid, comfort, or information to the enemy dur-
ing the war, in default of giving such bonds to be confined at
hard labor during the war. The bond was immediately given
and Crawford was discharged. The i)roofs before the commis-
sion fully sustained the findings of the mihtary tribunal.
" On the part of the claimant it was contended that the mil-
itary tribunal was without jurisdiction, and that the claimant's
imprisonment and detention were unlawful.
*< The memorial claimed $500,000 as damages, and the com-
mission unanimously disallowed the claim.
ARREST, IMPRISONMENT, AND DETENTION. 3287
" In the case of John Carinody, No. 86, it
Carmody'B Case, appeared that the claimant, domiciled in Xew
Orleans, was in March 1865 conscripted into
the military service of the United States. The notice of his
conscription requiring him to report for military service was
addressed to him by the name of John Kemdy, and on receiv-
ing it he procured from the British consul at New Orleans a
certificate of his British nationality, which he alleged that he
presented to the officer in charge of the office at which he was
required to report, but two days after was arrested by a squad
of United States soldiers and was detained in a military prison
for some five or six weeks. The arrest and detention evidently
arose from mistake growing out of the confusion of names.
The memorial claimed $100,000 damages, besides interest, and
the commission unanimously awarded the claimant $500.
'' In the case of William Patrick, Ko. 97, it
Patrick's Case, appeared that the claimant, a British mer-
chant, domiciled in New York, was on the 28th
of August 1861 arrested and committed to Fort Lafayette,
where he was detained till the 13th September following, when
he was discharged. His arrest was based on the charge that
the firm in New York of which he was a member, and which
had a branch house also at Mobile, Alabama, was a channel
for carrying on correspondence between rebels in Europe and
those in the insurrectionary States. Eepresentations by highly
respectable citizens of New York of Mr. Patrick's loyalty were
made to the Secretary of Stiite, and the British minister also
intervened in his behalf. Investigation showed that the charge
against Mr. Patrick was without foundation, and he was dis-
charged after a confinement of seventeen days. The proofs
established Mr. Patrick to have been a gentleman of high social
and business standing, and also to have been in conduct
marked by loyalty and good faith toward the government dur-
ing the rebellion, and to have furnished liberal contributions
in its aid. His arrest was undoubtedly caused by false or
erroneous information.
" On behalf of the claimant punitory damages were claimed.
On the part of the United States it was insisted that no such
damages could be allowed; that Mr. Patrick, domiciled within
the United States, was exposed in the same degree with citi-
zens of those States to arrest on false charges or erroneous
information, and that, having been discharged within a rea-
sonable time for inquiry to be made, he was not entitled to
\
3288 INTERNATIONAL ARBITRATIONS.
claim damages against the United States; that if any damages
were awarded to him, they should be such only as would afford
him fair compensation for the injury inflicted.
<<The memorial claimed $100,000, besides interest. The
commission awarded the claimant $5,160, Mr. Commissioner
Onrney dissenting on the question of amount.
" In the case of Joseph J. Bevitt, No. 104, the
Bevitt's Ca«e. claimant, until that time domiciled in South
Carolina and Virginia, left Richmond in April
1863 and passed through the rebel lines to the Potomac River,
was there taken on board a United States transport steamer
on the 30th April 186^3, taken to Washington, detained in the
Old Capitol prison until the 19th May, and then sent back
into the Confederacy.
^<Ou the part of the claimant it was contended that Bevitt,
being a British subject, and not having offended against the
laws of the United States, or taken part in the domestic strife
then in progress, was entitled to such egress without molesta-
tion by the public authorities.
^'On the part of the United States it was maintained that
the attempt of the claimant to enter the loyal x)ortion of the
United States from the enemy's country, and through his mili-
tary lines, after having voluntarily remained within the enemy^s
country during two years of the war, was one which the United
States might lawfully prevent or punish, and that their send-
ing him back into the enemy's country, from which he came,
was an act permitted by public law.
'^ The commission disallowed the claim, Mr. Commissioner
Gurney dissenting.
" In the case of William Ashton, No. 326, the
Ashton'B Case, claimant, until then domiciled in the State of
South Carolina, in February 1863 came north
through the Federal lines under a pass from the Confederate
General Lee, and while crossing the Potomac River into the
State of Maryland was arrested by the naval patrol on the 7th
February 1863. He was taken to Washington, there detained
until the 11th May 1863, and then sent ba^k through the lines
into the enemy's country.
"On the part of the United States it was contended that the
case was parallel with that of Bevitt, above reported, and that
the arrest, detention, and return of the claimant were lawful
act« under the recognized laws of war.
ARREST, IMPRISONMENT, AND DETENTION. 3289
" The commission awarded to him the sum of $6,000, Mr.
Commissioner Frazer dissenting.
" The undersigned finds difficulty in reconciling the decision
of the commission in this case with that in the case of Bevitt.
It may be noted, however, that Bevitt was detained but twenty
days before being sent back, while Ashton was detained three
months and four days.
**In the case of Thomas Barry, No. 127,
Barry's Case. the claimant, domiciled at New Orleans, al-
leged that on the 15tli March 1864 he was
arrested without any cause or provocation, but arbitrarily
and maliciously, by a provost-marshal under the orders of
General Banks, then in command of the department; was com-
mitted to the parish prison, there confined for ten weeks, and
then released on giving a bond conditioned that he should
report daily to the provost-marshal in the city of New Orleans.
That he continued so to report until the 31st December 1864,
when the bond was canceled and the claimant fully discharged.
He claimed damages $50,000. The proofs showed that he was
arrested in the act of clandestinely and in disguise attempting
to pass from New Orleans through the lines into the enemy's
country, having upon his person letters to residents within the
enemy's lines, and carrying Confederate money, the use of
which was forbidden by the Federal authorities. That only
two months before he had perpetrated the same ofifense in the
same disguise; had visited many places within the enemy's
lines, and had returned into the Federal lines in the same
clandestine manner. Before his arrest he had applied for per-
mits to go within the Confederate lines for the alleged purpose
of looking up and bringing back cotton alleged to have been
owned by him; but such permission had been refused.
<< The claim was unanimously disallowed.
" In the case of Henry Glover, No. 134, the
Glover's Case, claimant, a resident of the State of Georgia,
was in November 1864, in company with a
companion, in Jones County, Georgia, within the enemy's ter-
ritory, overtaken by a detachment of cavalry from the corps
of General Kilpatrick, forming a part of the flanking force of
General Sherman's army in the march from Atlanta to Savan-
nah. His companion fled and was fired upon ; claimant waited,
was arrested and detained for twenty-four hours, when he was
discharged, it appearing that he was a civilian and a British
subject.
^' His claim was disallowed, all the commissioners agreeing.
3290 INTERNATIONAL ARBITRATIONS.
"The case of Thomas H. Facer, No. 203,
Facer's Case. wa8 similar in character to that of Glover, and
was disallowed in like manner.
" In the case of the administrators of James
Byrne's Caie. Syme, !N'o. 139, it appeared that the decedent
had been for many years domiciled at New
Orleans, and there carrying on a large trade as a wholesale
and retail druggist; that on the 28th August 1862 he was
arrested and taken before Major-General Butler, then in com-
mand of the Department of the Gulf, and there arraigned
on charges styled in the memorial ' false, wicked, and mali-
cious,' to the effect that he had aided and abetted the so-
called Confederates by the shipment of sulphur, drugs, and
medicines into their lines, and that he had violated his neu-
trality. General Butler, being satisfied of the truth of the
charges, condemned him, without the intervention of any
court or military tribunal, to be imprisoned at Fort Pickens
for three years at hard labor with ball and chain ; the ball and
chain were, however, within a few days, and before the com-
mencement of execution of the order, remitted. He was de-
tained in confinement at New Orleans for about six weeks;
then sent under guard to Fort Pickens, in Pensacola Harbor,
Florida, and there confined until about the 1st March 1863,
when he was brought back to New Orleans, and there detained
during an investigation by a military commission, which re-
ported him not guilty of the charges upon which he was
imprisoned. Pending the proceedings of this commission he
was discharged from confinement by order of General Banks,
who had succeeded General Butler in command, on giving a
bond, with surety, in the sum of $20,000, conditioned for his
appearance on requirement by the government. Upon the
report of the commission the bond was canceled August 28,
1863. At the same time with his arrest his drug store and
contents in New Orleans were seized and Jippropriated to the
use of the United States, and remained in tlieir possession
until about the Ist May 1864, when the store, with so much of *
the stock of drugs, etc., as had not been used, was surrendered
to his possession by order of the War Department.
^'A large amount of testimony was taken on both sides upon
the (luestion of his guilt or innocence of the charges on which
]ie was imprisoned.
*'On the part of the United States it was also proved that
the decedent, in November 1861, and again in March 1862,
ARREST, IMPRISONMENT, AND DETENTION. 3291
had accepted commissions as surgeon — first with the rank
of captain, and afterward with the rank of major — in the
battalion of the Louisiana State militia designated as the
British FusiHers; that this battahon was a regularly organized
portion of the State militia of the rebel State of Louisiana,
but was organized under the reservation that its members
should be required to serve only within the limits of the city of
New Orleans; that on the acceptance of these commissions
the decedent was required by law to take, and did take, an
oath faithfully to discharge the duties of the office to which he
had been appointed, and to support, protect, and defend the
constitution of the State of Louisiana and of the Confederate
States; that at the time of accepting these commissions,
resi)ectively, the decedent was above the age of forty-five
years, and was exempt by the laws of the State of Louisiana
from militia service by reason of age, even if otherwise liable
by reason of nationality or domicil. Evidence was also given
on the part of the United States to the effect that Dr. Syme,
shortly after the occupation of New Orleans by the Federal
forces, refused to sell medical and surgical supplies to medical
officers of the United States Army. Dr. Syme died in January
1872, before the filing of the memorial, leaving a widow and
one son entitled to inherit his estate, both born within the
United States and always domiciled there.
" On the part of the United States it was contended that by
the acceptance of these commissions and the taking of the
oaths above recited Dr. Syme had deprived himself of the con-
dition of a neutral alien and assumed the character of an
enemy of the United States, and was not entitled to a stand-
ing as a British subject under the treaty ; that the proofs fully
sustained the charges upon which he was condemned by
General Butler; that if any doubt existed upon the proofs
now before the commission as to the truth of those charges,
the evidence before General Butler and upon which he acted
was certainly sufficient to sustain his finding and to justify
the condemnation pronounced by him upon the proofs before
him ; that as military commander of a captured city within the
enemy's country, then strictly and solely under military gov-
ernment. General Butler was vested with full authority to
administer military law, either in person or through military
courts and tribunals organized under his order; that the
offense of which he found Dr. Syme guilty was a crime under
3292 INTERNATIONAL ARBITRATIONS.
military law of a high grade, and justifyiug the sentence pro-
nounced upon bim.
<^ The memorial claimed dainages for the arrest and imprison-
ment, $100,000; for the drugs and other property of the de-
cedent taken and appropriated by the United States (less the
value of the amount returned), and the rent of the store,
$166,925; and damages by the breaking up of the business of
the decedent, and the loss of profits which he would have
derived from the business, $150,000, besides interest.
^'The commission (Mr. Commissioner Frazer dissenting)
made an award in favor of the claimants for $116,200. I am
advised that this award included nothing for damages for
imprisonment, but was made solely in respect of the drugs and
other property taken and appropriated by the United States,
and the rent of the drug store while occupied by them. Mr.
Commissioner Frazer expressed his views upon the case as
follows :
"^ Being over the military age, and exempt from military
duty as a druggist also. Dr. Syme took a commission in the
British Fusiliers and an oath of office to support the rebel
confederacy, and evinced his hostility further, as I deem the
weight of the evidence to show, by refusing to sell goods to
the United States after New Orleans fell into Federal pos-
session. This made him an actual enemy, and he could have
no standing to prosecute a claim before this commission. The
beneficiaries — his wife and child — have none, because they are
Americans. His condemnation by General Butler was upon
what appeared at the time to be satisfactory evidence, though
it was subsequently shown before the military commission
organized under the order of General Banks that he was
probably innocent of the charges upon which he was arrested.
He was restored to liberty as soon as an investigation could
conveniently be had, and what remained unconsumed of his
confiscated goods was also restored, together with the
possession of his building.'
" In so much of this opinion of Mr. Commissioner Frazer as
relates to the sufficiency of the evidence ui)on which General
Butler acted to sustain his finding and sentence, and as relates
to the probable actual innocence of Dr. Syme as appearing
before the commission, I am advised that the majority of the
commission concurred.
" In the case of William B. Booth, No. 143,
Booth's Case, a claim was made for $56,000 damages for the
alleged wrongful arrest of the claimant in the
neighborhood of Fort Jackson, Louisiana, and subsequent im-
prisonment. He was arrested by United States soldiers on the
ARREST, IMPRISONMENT, AND DETENTION. 3293
Sth of August 1862, taken to Fort Jackson, and there confined
till the 28tli August; then sent to Fort Pickens, Pensacola
Harbor, and there confined till the 1 5th August 1863; then
taken back to New Orleans and detained till the 26th August
1863, when he was unconditionally released.
" Previous to his arrest Dr. Booth, who resided in Louisiana,
two miles from the forts and outside the lines of military occu-
pation by the United States, had been, on the request of Dr.
Gordon, the surgeon of the forts, visiting and prescribing for
the prisoners and Federal soldiers at the forts. Gen. Neal
Dow, the commander, learning the fact, had notified him that
he could not be permitted to visit the forts without taking the
oath of allegiance or giving his parole of honor not to com-
municate information to the enemy. Dr. Booth declined to do
either of these things. After his arrest he still continued his
refusal to give the required parole, and, persisting in his re-
fusal. General Dow ordered his transfer to Fort Pickens and
his detention there. At this time Forts Jackson and Saint
Philip, lying on the opposite banks of the Mississippi some one
hundred miles or more below the city of New Orleans, were
occupied by a United States force of about six hundred sol-
diers, and about the same number of liberated slaves, under
the command of General Dow. The garrisons were weak, and
a large number of the troops actually there were prostrated
by sickness. General Dow deemed it of the utmost importance
that a knowledge of the weakness of his garrison should be
kept from the enemy. The refusal of Dr. Booth to give the
required parole roused the suspicions of General Dow, and
when persisted in led to his sending the claimant to Fort
Pickens. During his stay at Fort Pickens, and after his retrans-
fer thence to New Orleans, he still persisted in refusing to give
the required parole, and was finally discharged, after a con-
finement of nearly thirteen months, unconditionally and with-
out parole. Lord Lyons, during his confinement, in a letter to
Mr. Coppell, British consul at New Orleans, stated that the
required parole was deemed not un)reasonable by Her M^esty's
government, after consulting the law officers of the crown,
"On the part of the United States it was insisted that the
arrest and detention of Dr. Booth were warranted as measures
of just military precaution in regard to an enemy by domicil
possessed of knowledge, the communication of which to the
enemy would be highly dangerous to the United States, and
who, by his refusal to give this proper and reasonable pledge,
3294 INTERNATIONAL ARBITRATIONS.
had, in the language of Lord Lyons, entitled the United States
to treat him as a suspected person.
^< The memorial of Dr. Booth also included claims to the
amount of $83,890, besides interest, for property of the claim-
ant alleged to have been taken and appropriated by the United
States.
^^The commission (-Mr. Commissioner Frazer dissenting)
awarded to the claimant the sum of $24,900, which award was,
as I am advised, wholly in respect of property taken, and
included nothing on account of the arrest and imprisonment.
" John McCann, No. 173, and John Murta,
' ° MurtiL^ *" No, 195, natives of Ireland and domiciled in
Luzerne County, Pennsylvania, were arrested
there — McCann in September 1863 and Murta in November
1863 — by United States troops, under authority of a provost-
marshal ; were taken to Fort Mifflin and there confined, McCann
till March and Murta tiU April 1864.
^' The proofs showed that at the time of their arrest an organ-
ized conspiracy existed in Luzerne County and vicinity to
resist the Federal draft for troops; that great violence was
used against Federal officers; that open defiance of the Federal
authority was made in pubUc meetings of the mining popula-
tion ; that loyal citizens sustaining the government had been
assassinated, and measures had been adopted to ambuscade
and massacre Federal troops, should they be sent there to en-
force the draft; that the principal disturbing element in this
conspiracy was the Irish Catholic miners; that not only secret
associations were formed, but public meetings were openly held
for the avowed purpose of stopping the mines and thus stop-
ping the war; that a large number of persons regarded as the
ringleaders and most dangerous persons in tbis movement were
arrested, and among them these two claimants. No proof was
made of the complicity of either of the claimants with the actual
resistance to the draft or violation of law; but Murta was
shown to have been a member of the organization known as
the * Knights of the Crolden Circle,' created to oppose the draft
and aid the rebellion. Neither of the claimants was ever
brought to trial.
" In the case of McCann an award was made in favor of the
claimant for $3,000, in w^hich all the commissioners joined. In
the case of Murta an award was made for $1,200, Mr. Commis-
sioner Frazer dissenting.
ARREST, IMPRISONMENT, AND DETENTION. 3295
"In the case of Thomas Riley, No. 192, the
Biiey'8 Caie. claimant, a resident of Luzerne County, Penn-
sylvania, was drafted into the United States
military service in November 1863, was taken to Philadelphia
aud there held in the United States military barracks for about
six weeks, when he was taken sick aud sent to the hospital,
and there remained coufined by disease till the 6th of April
1864, when he was discharged by the War Department, through
tbe intervention of Lord Lyons, as being a subject of Great
Britain, having received his pay as a soldier for the time dur-
ing which he was held.
" On the part of the United States it was contended that he
was held simply in consequence of his failure to comply with
the regulations of the provost-marshal's department in regard
to showing proof of alieuage. The case showed, however, that
the proofs of his alienage were submitted by Lord Lyons to
Mr. Seward in November 1863 within a few days after his
arrest, and his discharge was not ordered till about four months
after.
<^The commission unanimously awarded him the sum of $800.
"Edward McCabe, No. 197, was drafted into
MoCabe's Case, the military service of the United States in
Queens County, New York, in September 1863.
He appeared before the enrolling board and claimed exemp-
tion ; was informed of the regulation prescribing the method
of making the necessary proof; was given time to file it, but
failing to do so was arrested by order of the provost-marshal
and detained for two days, when, having furnished the neces-
sary proof, he was discharged.
"The commission unanimously disallowed his claim.
"Patrick J. O'Mulligan, No. 476, was drafted
CMuUigan's Case, in Cayuga County, New York, in October 1863.
He appeared before the board of enrollment
and claimed exemption as a British subject, but failed to com-
ply with the regulations for the proof of alienage. He was
detained for twenty-four hours, and on physical examination by
the surgeon was found unlit for military service and was dis-
charged. For these grievances he claimed the sum of $800,000,
besides interent.
"His claim was unanimously disallowed*
3296 INTERNATIONAL ARBITRATIONS.
"In the case of Mary Sophia Hill, No. 108,
HiU'i Case. the claimant, a native of Ireland, was domi-
ciled during the rebellion and for many years
before in New Orleans. At the time of the capture of New
Orleans by the Federal forces in 1862 she was in attendance
on the Confederate hospitals in Virginia, but shortly after
returned to New Orleans under a proper pass. In 1863 she
went to Ireland, and returned to New Orleans, taking the
oath of neutrality on landing, She again left New Orleans in
the fall of 1863 under a pass and went to Virginia, where she
remained for five months < rendering assistance in the hospitals
and to prisoners by means of flags of truce.' In 1864 she
returned to New Orleans, and having no pass was arrested and
detained in prison for two days, when, having satisfied the
provost-marshal that she was a British subject, she was
released on bail. After her discharge and while sick she
alleged that she was called upon by a woman who gave the
name of Ellen Williams, and gave her a note purporting to be
from Gen. Tom Taylor, an oflBcer of the Confederate service
commanding a post within the Confederate lines in Louisiana.
This woman informed claimant that she was going through the
lines into the Confederacy if she could get a pass from General
Banks, and offered to take letters from the claimant. Claim-
ant gave to her a letter to General Taylor, acknowledging the
receipt of his letter, and saying to him, 'Communicate and
state what you require, and I will do all in my power; I will
be here until the end of July.' She also gave to her a letter
addressed to her brother, a soldier in the Confederate service
in Virginia, in which she denounced the 'Yankees;' and said,
among other things, 'We have accounts of the battles in Rich-
mond, but so hashed up to suit Northern palates you can make
neither head nor tail of the affair; but through my spectacles
I see General Grant and his well-whipped army with their
faces toward Washington and their backs to the hated city of
Eichmond, except those who take their summer residence at
Libby. Tell the boys Banks has made a splendid commissary
to Dick Taylor's army, and they were so ungrateful as also to
whip him, and very badly.' She also gave this woman another
letter of similar character, addressed to Mrs. Graham, a per-
son living in Montgomery, Alabama, within the lines of the
Confederacy.
'' These letters were delivered on the 20th May 1864, and
within a few days after she was arrested by an officer of the
ARREST, IMPRISONMENT, AND DETENTION. 3297
provost-marshal's bureau, committed to prison, and there de-
tained until July, when she was brought before a military
commission and tried on the charge of ' holding correspond-
ence with and giving intelligence to the enemy, in violation
of the Fifty-seventh Article of War,' the specifications being
the written letters above named. She was found guilty of the
charge except the words ' and giving intelligence to,' and was
sentenced to ^be confined during the war, at such place as the
commanding general may direct.' The proceedings and find-
ings of the commission were approved by Major-General Hurl-
but, then in command, but the sentence was so modified as to
direct the claimant to be sent into the so-called Confederacy
as an enemy, and the provost-marshal-general was charged
with the execution of the order.
^' At the time of her trial New Orleans was still under mili-
tary government, but the TJuited States district court had
been reorganized under Judge Durell and was in operation in
that city. !N'o State tribunals were in operation, nor any local
tribunals, except under authority and x)ermission of the mili-
tary commander.
*' On the part of the claimant it was contended, first, that
the claimant was not amenable to military jurisdiction, but
must be tried, if at all, before the civil tribunals; second, that
if amenable to military jurisdiction, the commission before
which shid was tried was not a competent tribunal; that by the
Fifty-seventh Article of War (2 Stats, at L. 366) the only mili-
tary tribunal having cognizance of such an offense was a court-
martial, a tribunal distinct and dilf'erent from a military
commission; third, that the finding of the military commission
that she was guilty of the charge except the words * and giving
intelligence to,' was in fact an acquittal, correspondence with
the enemy without giving him intelligence not being a military
offense or a violation of the article above referred to; fourth,
that the commanding officer had no authority to change the
punishment directed by the sentence of the court, and subse-
quent banishment into the Confederacy for imprisonment; that
this substitution was not with the consent of the claimant, and
was not a mitigation of punishment; fifth, that the letters
were not in fact sent into the Confederacy, but were delivered
by the messenger to the United States military authorities in
New Orleans, and that the evidence tended to prove that the
pretended messenger to whom they were delivered was in facj
a spy and agent of the United States.
r^
3298 INTERNATIONAL ARBITRATIONS.
^< On the part of the United States it was contended that
the offense charged against the claimant was a military offense
purely, not cognizable by the civil tribunals; that the claim-
ant, domiciled in a city within the enemy's country and recently
captured from the enemy, held by military power only, and
governed only by military authority, was amenable to military
jurisdiction; that the tribunal before which she was tried was
a competent military tribunal, organized under sufficient mili-
tary authority, and having jurisdiction both of the subject-
matter and of the person of the claimant; that irrespective of
the proceedings, finding, or sentence of the commission, the
commanding general had full authority to expel the claimant
fi-om the city and send her within the enemy's lines, on satis-
factory evidence of her active sympathy with the rebellion,
and of her attempt merely to communicate with the enemy,
^nd that the modification and mitigation by the commanding
general of the punishment decreed by the military tribunal was
one of lawful power, and was not a matter of which the claim-
ant could rightfully complain.
^^ The commission gave an award in favor of the claimant for
$1,560, Mr. Commissioner Frazer dissenting. This claimant
was the same person whose original memorial (No. 8) was dis-
missed by the commission on account of its improper and
indecorous language.
"The case of Colin J. Nicolson, No. 263,
Kiooiwn's Cam. may properly be reported in connection with
that of Miss Hill. Nicolson, a native of
Scotland, had been domiciled in New Orleans since 1852.
He was arrested in that city on the 15th of September
1864; was detained in prison till the 22d of November 1864,
when he was brought before a general court martial in that
city and tried on the charges, fir8t,of relieving the enemy with
money, by investing money inbondsof theConfederat-e States
and transmitting the same to England for sale there; and, sec-
ond, of holding correspondence with the enemy by letters
passing between himself and one Violett, an enemy of the
United States, resident at Mobile; and in and by such corre-
spondence devising means for bringing cotton out of the Con-
federacy, and disposing of it for the Joint benefit of himself and
Violett, and for negotiating and selling bonds of the Confederate
States. He was convicted on both charges, and was sentenced
to imprisonment at Fort Jefferson, Florida, or at such other
ARREST, IMPRISONMENT, AND DETENTION. 3299
place as the commandJDg general shoald direct, for five years.
The sentence was approved by General Canby, commanding,
and the claimant was committed to confinement at Fort Jeffer-
son, where he remained for abont nine months, when he was
pardoned by the President of the United States.
<' The questions involved and the doctrines maintained by
the respective counsel in the case of Miss Hill were urged upon
the commission in this case. The counsel for the claimant fur-
ther contended that the dealing in bonds of the enemy in New
Orleans and transmitting them thence to England for sale was
not a ^relieving of the enemy with money,' or in any maimer a
giving of aid to the enemy, and that the correspondence of the
claimant with Violett involved iio aid or comfort to the enemy,
gave no information to them, and constituted no military
offense. He cited the first article of the treaty between the
United States and Great Britain of 3d July, 1865 (8 Stats, at
L.); also MiUigan's case (4 Wall. 2); Eagan's case (5 Blatch-
ford, O.C.R. 320); the Venus (2 Wall. 259); the Circassian
(id. 158); the Ouachita cotton (6 id. 531); Ooppell v. Hall (7
id. 542); Thorington t?. Smith (8 id. 12); the Grapeshot (9 id.
129).
^<The memorial claimed $500,000 damages. The claim was
disallowed by the commission, Mr. Commissioner Gurney
dissenting.
" In the case of James McVey, No. 208, the
MeYey'iCMe. claimant alleged that he was twice arrested.
It appeared that the first arrest was within
the enemy's lines, when he was detained for some four weeks
to prevent his communication with the enemy. The second
time he was arrested while in the act of carrying goods
across the lines from the enemy's country, and was held in
confinement several weeks. His claim was unanimously
disallowed.
^< Substantially similar to this last case, in
Omm of Kiiner, regard to the character of the arrest, were the
WhS^and Gale ' c*8^8<^^l8aacMilner,No. 207, in which an award
was made in favor of the claimant for property,
but including nothing for the alleged arrest; of Samuel Simp-
son, No. 217, which was unanimously disallowed; of John
Oarew, No. 224, which was disallowed, Mr. Commissioner Gur-
ney dissenting; of Henry F. White, No. 233, which was unani-
mously disallowed; and of John Gale, No. 247, in which there
5627— VOL. 4 5
3300 INTERNATIONAL ARBITRATIONS.
was an award for property, but iuclading nothing on account
of the arrest or imprisonment.
"In the case of Joseph W. Scott, No. 226,
Sootf ■ CtM. the claimant, domiciled at Jacksonville, Flor-
ida, was there arrested by order of the com-
manding officer in November 1864, on the charge of dis-
loyalty, and detained in confinement for some three months.
Jacksonville was an inland town, on the Saint John's Biver,
which came into the hands of the United States forces in Feb-
ruary 1864, and from that time to the close of the war was occu-
pied by them; but the rebel forces, most of the time, were
within its immediate vicinity.
" On the part of the United States it was insisted that the
military commander was necessarily invested with absolute
power for the control of the city; and that it was his duty to
take such measures as should prevent inhabitants disloyally
disposed from communicating with the enemy; and that noth-
ing in the case of Mr. Scott showed an abuse of this authority.
"An award was made in favor of the claimant in respect of
property taken by the United States troops, but it included
nothing for imprisonment.
"In the case of James T. Munroe, No. 236,
Knnio^s Case, claimant had embarked at New Orleans in
August 1864, on board a steamer for Mata-
moras, Mexico, with the machinery for erecting a saw mill at
that place. The steamer was stopped at Fort Jackson on the
charge of having contraband goods on board intended for
Texas, brought back to New Orleans, and the claimant was
there detained by the military authorities for two days on board
the steamer, and for twelve hours in the military prison at that
city. It appeared that while he was in confinement his trunk
on board the steamer was broken open, either by the provost-
guard or in consequence of their negligence, and money, wear-
ing apparel, and other articles stolen from it. On complaint
made to Major-General Oanby, in command of the city, an
order was made by him declaring these transactions, if true,
to be exceedingly discreditable to the guards, and directing
the provost-marshal to take measures to bring the offenders to
justice. An investigation was ordered, but the offenders did
not appear to have been discovered, and no reparation was
made to the claimant.
" On the part of the United States it was urged that the
ARREST, IMPRISONMENT, AND DETENTION. 3301
arrest and detention were lawful and reasonable for the purpose
of inquiry as to the character of the vessel, and that the United
States were not liable to reclamation for the theft of the claim-
ant's property.
^< An award was made in favor of the claimant for $1,540, in
which all the commissioners joined.
<< In the case of Susan B. Jackson, No. 255,
jMkMii'i Case, the claimant, in behalf of herself and her four
minor children, claimed damages for the arrest
of John Jackson, the husband of the claimant, at Enozville,
Tennessee, and his banishment within the enemy's lines, with
his family, in January 1864. It appeared that Dr. Jackson,
the husband, had been a resident of Knoxville for some years
and until after the breaking out of the war; that he had sent
his family to England in August 1861, and himself followed
them in June 1862; that he returned to New York in October
1862, and in January 1863, having obtained the proper permis-
sion, returned to Knoxville for the alleged purpose of disposing
of his property there. Instead of disposing of his property he
remained at Knoxville, and there entered into trade. Both
before his departure for England and after his return in 1863
he had been an open and active sympathizer with the rebellion,
denouncing the United States Government and encouraging
and aiding the rebels down to the surrender of Knoxville to
the United States forces in September 1863. Evidence was
also given on the part of the United States showing conduct
evincing a hostile spirit toward the U nited States Government.
On the 29th January 1864, the following notice was addressed
to him by General' Foster's provost-marshal :
" ' Owing to your persistent disloyalty to the Government of
the United States, it has been decided to send you and your
family south of the Federal lines. You will therefore be pre-
pared to start on receiving further notice.'
" The further notice was served on the 30th January, requir-
ing him to be ready to depart on the 3d February, on which
day Jackson and his family w^ere sent through the rebel lines
under a flag of truce.
" An award was made in favor of the claimant in respect of
property of her own appropriated to the use of the United
States, but including nothing by reason of the arrest and ban-
ishment complained of.
/
3302 INTERNATIONAL ARBITRATIONS.
«
<^ Joseph M. P. Nolan, No. 272, was arrested
The KoUn CasM. by the military provost-marshal at Saint Loais,
Missouri, in October 1861, on the charge of dis-
loyalty to the United States, and of having written a letter to an
alleged enemy of the United States in Canada, giving informa-
tion as to military movements. He was detained in prison at
Saint Louis tillJune 1862, then transferred to the military prison
at AltoA, Illinois, and there detained till August 1863, when he
was finally discharged. His release was ofifered him in Decem-
ber 1861, and on one or two other occasions, on his giving his
parole to do no act unfriendly to the United States. This parole
he refused to give. Great and unnecessary hardships in con-
nection with his confinement were alleged on the part of the
claimant, and the proof conclusively showed that the prison in
which he was confined at Alton was wholly unfit in its ap-
pointments and sanitary condition for the confinement of
prisoners, esi>ecially for the large number there confined; and
that at times the treatment of the prisoners, including the
claimant, was harsh and cruel.
^^ An award was made in favor of the claimant for $8,600, all
the commission joining. I am advised that the majority of the
commission, at least, held the original arrest of the claimant
and his reasonable detention justified; but that his long con-
finement and improper treatment during it were not justified.
<^In the case of Mary Nolan, No. 273, the claimant alleged
that she was arrested at Saint Louis by a detective in the
employ of the United States authorities in September 1864;
taken before the provost- marshal at Saint Louis, and committed
by him to the Chestnut street prison, where she was detained
for an entire day; and that she was there subjected to im-
l)roper treatment. She claimed damages $10,000. The evi-
dence in her case showed that she was brought before the
provost-marshal, apparently upon a subpoena, to testify in a
case before him; that she refused to testify, and defied and
insulted the officer, who committed her to the city prison,
where she was detained for nine or ten hours. Her allegations
of improper treatment were not sustained. The commission
unanimously disallowed her claim.
"In the case of John F. Parr, No. 285, the
Parr's Case. claimant, a resident of Nashville, Tennessee,
then in possession of the rebel forces, passed
through the lines into Indiana, and thence to Buffalo, New
ARREST, IMPRISONMENT, AND DETENTION. 3303
York, in October 1861. He went tbence to Kew York Oity,
where he bought some clothing, shoes, medicines, and other
goods, and returned thence to Buffalo, where he was arrested
immediately on his arrival, on the 20th of October. He was
taken to Fort Lafayette, in !N'ew York harbor, there confined
for about four months, and was finally discharged in February
1862, without a trial.
^^ An award was made in his favor for $4,800, in which all
the commissioners joined. I am advised that the award pro-
ceeded on the ground that though his original arrest and rea-
sonable detention were lawful, his detention for four months
without trial was held not justified.
<< Id the case of Bichard Hall, No. 318, the
HftU'i Case. claimant was arrested in Maryland, on the 6th
of March 1864; was brought before a military
commission on the charge of having unlawfully passed from
the loyal States through the Federal and Confederate mili-
tary lines into the State of Virginia, and there held illegal
intercourse with the enemies of the United States, and then
returned through the lines in the same manner. The military
commission found him guilty of the offense charged, and sen-
tenced him to imprisonment in Fort McHenry, Maryland, for
the term of four months, and to pay a fine of $6,000, and to be
imprisoned until the fine should be paid. He was accordingly
imprisoned for the four months and for twenty days thereafter,
when he paid the $6,000 and was released.
^^On the part of the claimant it was alleged that his visit to
Virginia was without unlawfal intent and for innocent and
social purposes. This allegation was answered on the part of
the United States by proof that the claimant took orders from
the Confederate military authorities at Aichmond for military
supplies, which he undertook to purchase for them, and that
he returned through the lines with the purpose of executing
such orders. The counsel for the claimant claimed that the
military commission was without jurisdiction, citing the case
of Milligan (4 Wall. 2). The counsel of the United States
claimed that the offense was purely a military one and cogni-
zable by the military tribunals under the Articles of War.
'^The cx)mmission (Mr. Commissioner Frazer dissenting)
made an award in favor of the claimant for $2,984. I am
advised that this amount was made up of the sum of $5,000,
part of the fine of $6,000 imposed, which the commission
3304 INTERNATIONAL ARBITRATIONS.
deemed excessive, reduced from United States currency, in
which it was paid, to gold, and interest added to make up the
amount of the award.
" In the case of Llewellyn Orowther, No. 362,
Ciowthei'f Caaa. the claimant was arrested in Baltimore in July
1863, taken before Colonel Fish, then provost-
marshal there, and detained in confinement at the Gilmore
House for about eight hours. The arrest grew out of a quarrel
between the claimant and two other persons at a hotel in Balti-
more, of which complaint was made to Colonel Fish, and the
claimant was charged with using seditions and disloyal lan-
guage. He alleged that Colonel Fish, on the arraignment of
the claimant before him, used language abusively and inde-
cently violent toward him and toward his country and Queen.
He claimed damages $10,000, and the commission unanimously
awarded him the sum of $100.
" In the case of John M. Yemon, No. 364, the
Vemon'f Case, claimant alleged that he had always been dom-
iciled in England, the country of his nativity.
It appeared, however, that he had resided in the United States
most of the time since 1S49, and had been there engaged in
trade. He was in Europe at the breaking out of the war, but
returned to the United States in June 1861, and thence passed
into the Confederacy, remaining there, with the exception of
a temporary absence in the latter part of 1861, till January
1863.
'^He alleged that he had always maintained his neutrality
between the United States and the Confederate government;
that in January 1863 he sailed from the port of Charleston in
the steamer Huntressy owned by himself and laden with cotton,
principally owned by himself, for Nassau, New Providence;
succeeded in passing out through the block<ade, but on the day
after his departure, and upon the high seas between Charles-
ton and Nassau, the steamer took fire and was destroyed, the
claimant with the master and crew escaping in two ship's boats.
These boats were picked up by a United States war vessel on
the ocean on the 18th January, and the claimant was carried to
Hilton Head, South Carolina, there transferred to another ves-
sel, carried to New York, examined before the United States
marshal there, and committed to Fort Lafayette, in New York
Harbor, in which fort, and afterward in Fort Warren, Boston
Harbor, he was kept confined till October 1865, when he was
released upon his written pledge that he would ^sail from Bos-
ARREST, IMPRISONMENT, AND DETENTION. 3305
ton, Massachusetts, by the earliest opportanity, and leave the
United States of America, not to return without the special
I>ennission of the President thereof!'
^< He alleged large losses resulting from his imprisonment, by
the waste and destruction of his property in the Southern States
during his imprisonment, and in consequence of his business
being deprived of his personal attention; and claimed damages,
in all, to the amount of £338,133.
''The proofs on the part of the United States showed that
up to his departure from Charleston, in July 1863, he had been
largely and actively engaged in rendering aid to the Confed-
erate government in its war against the United States ; that he
individually, and as a partner in the firms of Vernon & Go.
and Yemon, James & Co., had entered into large contracts
with the Confederate government for the supply of arms, am-
munition, and military supplies, including twelve large rifled
cannon, and large quantities of gun barrels, rifles, pistols, pow-
der, army clothing, shoes, blankets, etc. ; that he had been en-
gaged in the manufacture of arms during the war at Wilming-
ton, !North Carolina, for the benefit of the Confederate govern-
ment. At the time of his capture some of his contracts were
found upon him; these contracts also granting to his firm, on
the part of the Confederate government, certain privileges of
purchasing cotton and tobacco, and transporting the same
without hindrance, and exporting them to all ports except
those of the United States, with convoy if desired. Corre-
spondence ensued between Lord Lyons, Her Majesty's minister
at Washington, and Mr. Seward, the Secretary of State of the
United States; and upon submission to Her Majesty's legation
of the proofs found upon the person of the claimant further
intervention in his behalf was declined.
" Mr. Stuart, then Her Majesty's acting minister at Wash-
ington, on the 23d September 18G3 addressed to Mr. Yernon
the following letter:
" * Sib : I beg to inform you^ in reply to your letter of the
19th instant, that I lately received a dispatch from Earl Eussell,
stating that your case had been fully considered by Her Maj-
esty's government in communication with the law advisers of
the crown.
"*It appears to Her Majesty's government, judging by the
evidence produced, that you are a born British subject, and it
does not appear that you have obtained naturalization in the
United States, or exercised political privileges as a citizen.
/
3306 INTERNATIONAL ARBITRATIONS.
^<^But taking other circumstances into consideration, and
more particularly that you have identified yourself in the
strongest manner with the fortunes of the so-called Confederate
States, and that you were, when taken, actually engaged in
rendering material assistance to the government of these States,
although deriving a commercial profit from so doing, Her Maj-
esty's government are of opinion that the United States Gov-
ernment are justified in treating you as a de facto belligerent.
"'The evidence, moreover, shows that although, during a
residence of twenty-three years in the Southern States, you paid
occasional visits to England, you had no intention of return-
ing to permanent residence in your native country, and that
you were practically and de facto a willing citizen of the Con-
federate States, engaged in equipping their army.
" ' Her Majesty's government therefore consider, under the
circumstances, your release can not be claimed as a matter
of right merely because you were born a British subject, but
Earl Uussell desires that Her Majesty's legation should, never-
theless, endeavor to persuade the United States Oovernment
to mitigate or shorten your captivity.
" * I accordingly represented to the Secretary of State, on
the 10th instant, that it would be a gratification to Her
Majesty's government to learn that your captivity had been
mitigated or shortened through the clemency of the United
States Government, and your case is consequently again under
consideration.'
" From that time forth Her Majesty's government uniformly
and consistently declined any international interference for
the protection of Mr. Yernon, and disclaimed all pretense of
right to intervene in his behalf. Sir Frederick Bruce, then
Her Majesty's minister at Washington, as late as 24th October
1865, said in a letter to Mr. Yernon, in response to an appli-
cation from him: * My instructions prohibit my interfering in
your behalf.'
^'A labored argument was filed on behalf of the claimant,
by which it was contended that the imprisonment of the
claimant without trial was utterly unjustifiable; that it was
prolonged in a manner never contemplated by the British
authorities; that while under restraint his treatment was
indefensible, and that the order of banishment from the United
States, and the subsequent refusal to revoke it, were outrages
against all law and justice. That the decision of Her Majesty's
government, justifying the treatment of the claimant by the
United States Government as a de facto belligerent, was erro-
neous; that the condition of the claimant, at the time of his
capture, was that of a neutral alien engaged in commercial
ARREST, IMPRISONMENT, AND DETENTION. 3307
transactions- only with the Confederate government, and that
sach transactions were not criminal and did not deprive him
of his neutral character. That even if he had previously been
an enemy by domicil, he had, when he embarked from Charles-
ton on the HuntresSj left the country of his former domicil
without the intention of returning, and his native domicil,
native allegiance, and native status had thereupon instantly
reverted to him, and that the decision of Her Majesty's govern-
ment, justifying his detention by the United States and reftis-
ing to intervene in his behalf, could not be taken as prejudicing
the claimant's individual right to reclamation under the rules
of international law. The counsel for the claimant cited, in
support of these propositions, the following authorities: 4
Blackstone's Com. 76; Halleck's Law of War, c. 29, § 3, p. 695;
2 Kent's Com. 49; Inglis t?. The Sailors' Snug Harbor, 3 Pet.
99; Vattel, lib. 1, c. 12, § 218; 2 Brown Civ. & Adm. law, c. 7,
p. 327; The Venus^ 8 Cranch, 278; The cases of Adlam, No.
40; Doyle, No. 46, and Tongue, No. 49, decided by this com-
mission; Calvin's case, 7 Coke; Gardner's Inst. Int. Law, pp.
448, 489; Livingston v. Maryland Ins. Co., 1 Cranch, 642;
Wheaton's Elements, part 4, c. 1, pp. 561 to 669; Halleck, c.
21, § 18 p. 603; id. c. 29, § 3, p. 315; 1 Kent's Com. § 5, p. 73;
Story's Conflict of Laws, c. 3, § 27, p. 61 ; Woolsey's Int. Law,
p. 100; 1 Duer on Ins. pp. 515, 520; The Frances^ 8 Cranch,
280, 8. c. 1 Gall. C. C. R. 614; The Bos Hermanos, 2 Wheat.
77; The Friendschaff^S id.U; The United States r. Guillem,
11 How. 60; The Ann Oreen, 1 Gall. C. C. E. 275; The St.
Latcrence^ id. 267; Catlin v. Gladding, 4 Mason, 308; The
Stater. Hallett, 8 Ala. Rep. 159; 3Phillimore, § 85, p. 129; id.,
§4, pp. 404, 604; Twiss, § 43, p. 83; DeBargh, c.2, p.36; West-
lake, c. 3, § 40, p. 39; 2 Wildman, pp. 15, 43; 1 id. p. 57; The
Indian Chief y 3 Rob. 12 ; The Etrusco, id. 31 ; The Harmony ,
2 t^. 322; The Ocean^ id. 91; The Virginia, 6 id. 98; Boswell's
Lessee v. Otis, 9 How. 336.
" The commission unanimously disallowed the claim.
" In the case of William B. Forwood, No.
Forwood*! Case. 394, the claimant, a British subject, domiciled
in England, in October 1861 landed at Kew
York from the steamer City of Washington from Queenstown.
He was arrested immediately on landing from the steamer, on
information that he had, both in IJverpool and on board the
steamer upon his passage, expressed himself as a warm friend
3308 INTERNATIONAL ARBITRATIONS.
of the rebellion, and that he was connected with a Arm engaged
in mnuing the blockade, and upon the suspicion that his visit
to !New York was for the purpose of promoting correspondence
with the enemy. He was detained at the office of the chief of
I>olice in New York for some three or four hours, his person
and baggage examined, and he was then discharged. He
claimed, as damages for his arrest, £5,000. The commission
disallowed his claim, Mr. Commissioner Gurney dissenting.
<^In the cases of Stephen Jarman, No. 418;
Cases of J»nii»ii, i^5^p|jBowden,No. 419; SamuelJoseph Bed-
H^ mi^S***' gate. No. 420, and John Henry Ellsworth, No.
421, the claimants were respectively the master
and passengers on the British steamship Peterhoff, captured
as prize of war by the United States steamer Vanderbilt^ near
the Island of St. Thomas, in February 1863. The case of the
Peterhoff will be more fully reports under a subsequent head.
Bowden, Bedgate, and Ellsworth were respectively in charge
of i>ortious of the cargo of the Peterhoff either as owners
or consignees, or as agents for owners or consignees. The
Peterhoff was taken, on her capture, first to Key West
and thence to New York, where she was libeled in the
United States district court. Jarman, Bowden, and Bedgate
were taken with the vessel to New York, and detained till
their depositions, in preparatorio^ were taken, when they
were discharged. Ellsworth was discharged at Key West,
without being taken to New York or examined as a witness.
He was detained on board the Peterhoff from her capture, 25th
February, till the 25th March, eighteen days after her arrival
at Key West. Jarman, Bowden, and Bedgate were examined
as witnesses in New York on the 1 st day of April, the fourth
day after the arrival of the Peterhoff in New York Harbor,
and were respectively discharged immediately after their
examination.
^< On the part of the claimants, respectively, it was contended
that the capture of the Peterhoff was unlawftil, and the deten-
tion of these claimants, re8i)ectively, was likewise unwarranted
by prize law.
<< On the part of the United States it was contended that
the Peterhoff was rightfully captured on justifiable cause, and
that the detention of these claimants as witnesses was war-
ranted by the law and practice of the prize courts; and that
as to Ellsworth, his release at Key West without examination
ARREST, IMPRISONMENT, AND DETENTION. 3309
as a witness, and withont being taken to Kew York where the
vessel was libeled, could not be considered as an aggravation
of his imprisonment, nor as giving him any right of reclama-
tion, which he would not have had if taken to Kew York and
examined as a witness, as he lawfully might have been.
^'The commission unanimously disallowed all the claims.
" The case of Philip George Beinumont Dean,
Bean'f Case. ^o. 465, was of like character with the four
last named. The claimant was captured on
board the British brig Dashing Wave (whose case will be here-
after rei)orted), off the mouth of the Eio Orande Biver, in
November 1863. He was rated as an able seaman on the brig,
though in fact a passenger and a son of one of the owners of
the brig. He was taken with the vessel to New Orleans,
where the vessel was libeled^ was examined as a witness in
preparatario 28th November 1863, six days after the arrival of
the vessel at New Orleans, and was then released. His memo-
rial alleged that from that time till the 23d July 1864 he was
'detained on parole by the commissioners of the United States
Government' at New Orleans, but liis evidence showed no such
detention or parole, and it appeared that his stay in New
Orleans after his examination was a voluntary one, for the
purpose of looking after the interests of the owners of the
vessel and cargo.
''His claim was unanimously disallowed by the commission.
" In the case of George F. Cauty, No. 443,
CmutfB Caaa. the claimant was a British subject, for several
years domiciled in Central America, but from
March to December 1863 temporarily resident in the city of
New York, engaged, as he alleged, in commercial enterprises
connected with Central America. Ue was arrested in New
York by the United States military authorities on the eve of
his departure for Nicaragua by steamer, 24th December 1863;
detained in a prison in the city of New York for three days,
then transferred to Fort Lafayette, and there confined till
the 14th March 1864, when he was discharged without trial
and without information of the grounds of his arrest, except
the general statement that he had been engaged in aiding the
enemies of the United States, or violating the neutrality laws
and regulations. It appeared that he was arrested in company
with one Dr. Segur, in connection with whom he had been
engaged in purchasing arms, as was alleged by them, for the
3310 INTERNATIONAL ARBITRATIONS.
state of San Salvador, and that the circnmstances of the pur-
chase and shipment of these arms were such as to lead to the
strong suspicion that they were in fact purchased and shipped
for the use of the Gonfederate government. Shortly after his
arrest he was brought before a military commission at New
York and interrogated as to his connection with Dr. Segnr, and
purchase of arms made by him. Most of these questions he
refused to answer, on the ground that he had 'been advised not
to compromise himself or his friends in any shape or manner.'
He was thereupon remanded to prison. The charge that the
arms were in any way designed to aid the enemies of the
United States was not sustained by the proofis. The claimant
alleged large pecuniary losses resulting from his imprisonment.
''The commission made an award in his favor for $15,700,
Mr. Commissioner Frazer dissenting on the question of amount.
'< John Tovell, No. 446, a Baptist clergyman,
TdveU'f Cam. was arrested at Nashville, Tennessee, on the
9th of November 1862, on the charge of dis-
loyalty to the United States, and of having in the course of a
funeral oration delivered at Nashville used language strongly
denunciatory of the military authorities in charge of Nashville,
and tending to incite disaffection and rebellion. Nashville
was a town within the insurrectionary States, captured by the
United States in the spring of 1862, and held by them as a
military post and under military government at the time of the
claimant's arrest. He was detained in prison till the 8th June
1863, and then banished into the Confederate lines.
''The commission awarded him $830, Mr. Commissioner
Frazer dissenting.
"Henry R. Smith, No. 461, a physician,
H. R. Smith*! Case, domiciled at Louisville, Kentucky, within a
State not in rebellion, was arrested at that
place by the military authorities of the United States in July
1864 on a charge of circulating treasonable documents, the
documents in question being copies of a handsomely printed
placard highly laudatory of the Confederate General Robert
E. Lee as a patriot, Christian, and hero of unfaltering devo-
tion to duty, etc. Louisville and the State in which it was
situated contained a large proportion of sympathizers with
the rebellion, and it was contended on the part of the United
States that the circulation of this document by Dr. Smith was
made with the direct purpose and intent of giving aid to the
ABREST, DfPBISONMENT, AND DETENTION. 3311
rebel cause; that it was calculated to give such aid, and tliat
bis imprisonment and detention were lawful military acts.
The claimant was imprisoned for about fourteen weeks, and
was then discharged without trial.
<' The commission gave an award for $1,540, Mr. Commis-
sioner Frazer dissenting.
<< Robert McKeown, No. 463, was in March
XeKeows'i CtM. 1863, while employed as a ship carpenter in
the service of the United States Government
on board the gunboat Benton^ on the Mississippi Eiver, near
the mouth of the Yazoo, arrested by the commanding officer
of the gunboat, confined in the hold for about four days, then
transferred to another gunboat, and taken to Cairo, Illinois,
where he was discharged on the 5th April, after a confinement,
in all, of thirteen days. He alleged improper treatment dur-
ing his confinement, in consequence of which his health was
materially injured. His arrest was upon the charge of dis-
loyal ai\d seditious language against the United States while
employed on board the gunboat.
<< The commission unanimously made an award in his favor
for $1,467.''
Am. and Br. Claims Commission, treaty of May 8, 1871, Hale's Report,
61-87. See, also, as to oases of McHugh, No. 357, and Reading, No. 43,
Howard's Report, 69, 555, 560, 563, 73, 569, 571.
Prior to the civil war in the United States the
FrenehMidAxiisziean f^^^ ^f Edward Gautherin & Co., consisting of
^T*^?*^' ^"* Edward Gautherin and Alfred C. and Jules Le
of too Le mores.
More, all citizens of France, was engaged in
basiness at New Orleans, the two Le Mores being the resident
partners. At the time of the capture of the city by the forces
of the United States, in April 1862, the firm had a contract
with the Confederate authorities for the delivery of a large
quantity of gray military cloth, and in June 1862 it delivered
to them at Matamoras, through an agent, a quantity of cloth
valued at $405,483.08, taking therefor a receipt. This receipt
was duly presented at the Bank of New Orleans, and the sum
of $405,000, which the Confederate authorities had deposited,
first with the French consul and then at the bank, i)reviously
to the delivery of the cloth, was obtained upon it.
When this transaction was discovered. General Butler caused
the two Le Mores to be arrested and brought before him, and
after an examination he sent Alfred Le More to Fort Pickens
I
3312 INTERNATIONAL ARBITRATIONS,
and Jales to Fort Jackson. Alfred was confined at Fort
Pickens from the 15th to the 26th of November 18G2, and was
fbrced to wear a 32poaud cannon ball and 6 feet of iron chain.
From November 28 to December 20 be was imprisoned, with
others, in the New Orleans custom-house. Jules Le More was
simply confined at Fort Jackson, and was then brought to
New Orleans and kept at the custom-house.
On behalf of the claimants it was contended (I) that on
April 14, 1862, when New Orleans was still under the control
of the Confederate authorities, the sum of $405,000 was held
in escrow by the French consul; (2) that on the following day
the agent of Gautherin & Go. left New Orleans to deliver the
goods to Confederate authorities; (3) that after the capture of
New Orleans by Admiral Farragut, and the raising of the
blockade, the city remained surrounded on the land side by
the lines of Federal forces, and that Gautherin & Co. were
uuable to communicate with their agent, who left New Orleans
on or about the 14th of April ; (4) that under the lawp of the
State of Louisiana the transaction was complete on the 14th
of April. (See Contract of Sale, chafi). 4, art. 2431.) It was
contended further on behalf of claimants that the duties of
the neutral alien were determined by international law and
not by the municipal law of the Uuited States, and that the
Le Mores had never violated their duties as neutrals.
Counsel for the United States maintained that by the exe-
cution of their contract with the Confederate authorities the
Le Mores voluntarily gave aid and comfort to the enemies of
the United States during the time specified in the first article
of the convention, and contrary to the provisions of that
article, and that cousequently the commission had no juris-
diction either of the persons or of the cause.
The majority of the commission*— Baron de Arinos and M.
de Geofroy — held that the Le Mores, by the delivery of the
cloth, were not guilty of giving aid and comfort to the enemies
of the United States, but the grounds of the opinion were not
stated.
In the case of Alfred Le More the majority of the commission
said:
"This is a case of unusual and arbitrary conduct on the
part of the general commanding at New Orlejins.
"He had no right to iiitiict punishment on the claimant, but
only to detain him in custody for trial. The punishment of
ARREST, IMPRISONMENT, AND DETENTION. 3313
solitary imprisonment at hard labor with ball and chain was
unnecessary, extreme, and much too severe. In this case we
allow the claimant ten thousand dollars without interest.''
In the case of Jules Le More an award of $4,000 without in-
terest was made.^
Jules Le More v. United States , No. 594, and A.C.Le More v. United States,
No. 598y Boatwell's Report, III., commission nnder the convention between
the United States and France of January 16, 1880.
Charles Heidsieck, a citizen of France and
Hddiiaek'i Case, a manufJEtcturer of wines, whose place of busi-
iness was at Bheims, France, made, previ-
ously to the civil war in the United States, sales to various
persons in that country, as the result of which he held claims
against them for considerable sums of money. In April 1861
he came to the United States for the pui*pose, as he alleged,
of protecting his interests in the North and in the South.
He passed firom New York City to Schenectady, N. Y., then
to Louisville, Kentucky, and then to New Orleans, where he
arrived in June 1861. After the capture of 'New Orleans in
April 1862, General Butler, having learned that there was at
Mobile a stock of flour purchased by the city of New Orleans
for the subsistence of its citizens, dispatched a steamboat,
under safe conduct, to Mobile, to transport the flour to New
Orleans. Heidsieck, who had then established himself at
Mobile, though he had not obtained authority to leave New
Orleans, obtained or assumed the position of bartender on the
steamboat, and was enrolled among its employees. In that
' The commissioner on the part of the United States, Mr. Aldis, delivered
a dessenting opinion in which he said :
''1. The evidence that is not in dispute shows, in my opinion, that the
claimants gave aid and comfort to the enemies of the United States.
**2, Notwithstanding the conflicting decisions of the courts, and the more
conflicting opinions of the writers upon international law, I think that
the gray cloth famished by the claimants should upon principle be held
to be contraband of war. It was furnished voluntarily upon express con-
tract with the Government of the Confederate States for the use of the
army. Its destination was for some port of the Confederacy nearest to
Richmond, if possible. It was called in the correspondence ' army supplies.'
It was a direct and necessary aid for carrying on the war. These are the
elements which upon principle constitute contraband goods.
''The doctrine and policy of nations as to what is and what is not con-
traband advance and recede according to their necessities as belligerents
or their interests ; but the doctrines of international law must stand upon
principle to command the assent and respect of mankind.''
/
3314 urmBi^nnTff^n mhsttrxudw^,
jiui <»iavQf«f L laoaeEs bcftwosn. Sieir «!>cie«iij» ;iaii MobiI& Wb»
tbm fiit?t wan •iiaeovcxetL G^auaaL Bmiar mfsaxA aa avder fiir
hill amsCL Oa diis iicdiar iie wuii lumsted July 29« Li4£L He
was 'iesamed in y^w ^ydeanA aH AotfiBst k wiuai he was
Craoolferred tti F<irc -Andcaon. He renuiDUMi choe laH Au^vst
129. wlien he wae removed ta Fort Fli!keiiik He wae releiiAed
5ov€]iiber X I^^HIL Jiter a Jeqmnnn of LLO dajv^w Afber he hed
been unpriaiMieii ^ or m «L&ysw Geniaral BocUgr oAfed Co rekeee
him on i*oadicii)n tduic he recacn a> Europe bj the drst ▼essd:
bat rhi» oifer he n^je«:t:fHL He dbune«L tlir his HO days^* im-
prxaonment, tS^^MO: ;uid Ibr ihuDs^sfi^ zo hi» cepatafefioa in
Franee. aod ibr his benkrnpCey. #II-kiMiK
Coonaei ibr the Ciiit«&d Sc;ifik» ooacended X^^aM Heidakeck
was pfoperly arrctsofid a« a spj. ;uid dL&c the pgnmhawat
imposed ap«xi him wa» a very modecace one.
Coanaei for the daimaat on the other hand urged that ht
had no intention ti> conTey iiiJbrm;Uion that cooUi affect the
interests o( the bellij?erent&. aad that the ]ett»s whkh he
bronght were for the most part addret»ed to the Freneh coosnl
at New Orleans.
The daim was disallowed bj the aet of a mj^^ority of the
cr>Tnmi.^ion. con;9i.^ting of Baron de Arinoe and CoaunissHNier
AUll^, M. JjfifMvre dissented.
Vpfpn a rehearing, after motion, the same mjyority on March
2^F, IHM^ reridererl an opinion in thes^ words:
^' Thix ^.a^e haM been fully considered on the rehenring. As
fpnr r^^irtf'Jjyfl colleague, the commissioner on the part of the
yrfjiffi K4>;prjb]ie.difrers from us, and has expressed a dissenting
ff\f\u\trti^ we deem it proper to briedy state our views, thongh the
r|rieiiitiori \i^ purely a question of fact resting upon the evidence.
'^Mt. lleidMieck in the summer of 1S62 was a leading wine
merchant of Kheims, France, the head of his house, and doing
a large buAinesi^ in the sale of champagne wine both in Enrope
and America. He was about 40 years old, and bad a wife and
children. He ha^l an agency for the sale of his wines in New
OrleariA and in most of theotber cities of the United States.
" fri June \W2 (ieneral Butler made an arrangement with Uie
(/Orifi^lerate authorities at Mobile by which a steamboat under
a Hag of truc^; vAmUl pass from Mobile to New Orleans and back,
carrying flour Ui New Orleans and returning with salt to Mo-
bile. But as it wan all important that there should be no cor-
reHrKindenco betwe^jn the Confederate citizens of New Orleans
and thoffi) outside, it was made a part of the arrangement that
no pfiMiuigcrH should be allowed on the boat, and all letters
Hlionid bo carried openly, be submitted to Captain Thornton for
ARREST, IMPRISONMENT, AND DETENTION. 3315
his inspection, and in the care and custody of Mr. Greenwood,
both of whom were Federal officers, and subject to the order
of General Butler. This caution was necessary to prevent all
communications between the disaffected Confederate citizens
in New Orleans and the armies on the outside, who were plan-
ning the recapture of the city.
^^In June 1862 Mr. Heidsieck took the position of barkeeper
on this steamboat, and between that date and the 29th July he
made four trips from Mobile to Kew Orleans and back.
''That a gentleman like Mr. Heidsieck should take such a
position as Chat — so humble and so much beneath him — and
should contiDue in it for four consecutive voyages certainly
seems surprising.
"He gives them [reasons], first (p. 33): *To obtain news, if
possible, from the French consulate of my affairs and of my
family.' It does not seem a wise or a fair course to assume the
post of barkeeper to get such information. It would occur to
anyone that a frank aud open letter to the French consul, to
be read by General Butler, would be a better way and be open
to no objections. But even if this be an excuse for so going
onc€j still it can not be considered as an excuse for going four
times, especially as he ascertained the first time that there
was nothiug for him at the consulate.
"It is further to be considered that he had directed his
agents in New York not to send on his letters until they knew
where he was; that they did not know, and that he had really
no reason to exi)ect letters at New Orleaus.
"His second reason was that he agreed with the captain of
the boat that he would sell the liquors in the bar for the benefit
of the boat (the boat to furnish them), but the wines for his
own benefit (he furnishing his own wines), and that as the
expense of living was very great, this operation would give
him a profit not to be despised.
"As no passengers were allowed on the boat, the idea of a
profit from selling his champague wines to the crew is plaiuly
uo good reason; it is a pretense, and easts discredit on his
whole story.
"These are all the reasons he gives. The absence of any
good reason for his conduct, aud at such a time when every
artifice was resorted to to carry communications between the
Confederates in and out of the city, justly subjected him to
grave suspicion.
"At the last voyage he carried a package of letters, as bearer
of dispatches, as he called it, to Gomte M6jan, the French con-
sul. This package G^ueral Butler opened. He then sent for
Gomte M^jan; had a stormy interview with him; charged
Heidsieck with bringing letters fraudulently, and ordered him
to be arrested as a spy and sent to Fort Jackson. This oc-
curred on July 29th. He arrived at Fort Jackson August 5th.
Eight days after, August 13, General Butler offered the claim-
ant his liberty if he would go to France by the next boat and
not return during the war. This he refused. His case was
5627— VOL. 4 6
r
3316 INTERNATIONAL ABBITBATIONS.
then sent to Washington for the administration to decide.
This made delay. Gomte M^jan went to Washington on his
behalf, among other things. Traveling from Kew Orleans to
Washington was then slow and difficult, and we may reason-
ably think that there must have been much delay, especially
if there was correspondence between Washington and New
Orleans.
<^In the mean time the claimant was sent to Fort Pickens, a
place thought to be more healthy than Fort Jackson.
<<On the 15th November the authorities directed him to be
set at liberty upon condition that he would leave the country,
the only difference between this offer and the one made by
General Butler being that he might go to New York and then
to France, instead of going by the first boat.
<<If he had accepteid Oeneral Butler's offer on the 13th
August or had asked to have it modified as to going by the
first boat, he would have been in custody only fifteen days.
^< We think Oeneral Butler had good cause for arresting the
claimant, and that it was his own fault that his imprisonment
was prolonged beyond fifteen days.
"The claim is disallowed."^
Charles HeidHeck v. United Statee, No. 691, Bontweirs Report, 119: Com-
mlMion ander the convention between the United States and France of
Janaary 15, 1880.
Augusta de Bebian, daughter of Louis de
BeUan'f Caie. Bebian, a French citizen, who was lost at sea
in 1865, presented a memorial in which it was
stated that at the outbreak of the civil war in the United
States Louis de Bebian was a resident of Wilmington, jNorth
* M. Lefaiyre, the commissioner on the part of France, filed the follow-
ing dissenting opinion :
** I can not bring my mind to a concarrenoe with my colleagne in disal-
lowing this claim. In my view of the case the action in the premises of
Oeneral Butler, the commanding general of the Federal forces at New
Orleans, was arbitrary and illegal. The arrest and imprisonment of the
claimant in close prisons, situated in unhealthy localities, for the period
of one hundred and ten days, without a trial, was not only out of proportion
to any offense disclosed in the record, but was a violation of the law of
nations and of the rights of a French citizen who was at the time under
the safeguard of a flag of truce.
** The failure of the defendant government to produce Oeneral Butler as
a witness, and the nonintroduction of the so-called treasonable correspond-
ence, is, in my opinion, strong proof that there>was no sufficient evidenoe
to Justify the harsh treatment to which claimant was subjected at the
hands of the Federal military commander.
"The principle upon whicli I rest my dissent in this case has been indi-
cated and sanctioned by the jurisprudence of the commission in the Le
More arrest and imprisonment cases.
" Under the circumstances the claimant is entitled to an award of ten
thonsand dollars."
ARREST, IMPRISONMENT, AND DETENTION. 3317
Carolina, in the employ of the mercantile firm of O. G. Pars-
ley & Co.; that on August G, 1861, he left Wilmington in the
English vessel Adelso as the agent of that firm; that the ves-
sel was driven by stress of weather into Kewport, Ehode
Island, where she was boarded and searched by a revenue offi-
cer; that among De Bebian's papers were found a letter of
credit and instructions from Parsley & Go. to purchase in Liver-
pool quantities of army blankets, coffee, clothing, and iron of
various sizes, all to be shipped in a French or British vessel to
Wilmington; that there was also found among De Bebian's
effects a set of signals, to be answered firom the shore, for the
purpose of enabling the vessel with the contemplated cargo to
make the harbor of Wilmington ; that upon the disclosure of
these facts De Bebian was arrested and sent to Fort Lafayette,
where he was detained from August 20 to September 16, 1861,
wh^n he was released on parole; that on October 4, 1861, Mr.
Seward, then Secretary of State, informed the French minister
that he had ordered De Bebian's release on condition that he
would not return to the Gonfederate States; and that all De
Bebian's papers except the letter of credit, which had been lost,
were returned to him. The memorial claimed damages for (1)
^he arrest, (2) bad treatment, (3) the loss of the letter of credit
and the consequences thereof, (4) the expense incurred in the
effort to recover the letter of credit and to obtain justice, (5)
the imprisonment and its resulting losses.
Gounsel for the claimant urged that the arrest and detention
of De Bebian were arbitrary and without good cause; that
when arrested he was on his way to Europe for a legitimate
commercial purpose; that the goods which he was to purchase
were to be disposed of in the regular course of business, and
were in no manner to be considered as contraband of war.
In support of this position counsel referred to Article XXIY.
of the treaty between the United States and France of 1778,
and to the treaties between the United States and Holland
of 1782, between the United States and Sweden of 1783, and
between the United States and Spain of .1795, all of which
declared in substance that various articles of merchandise,
among which were ^^all sorts of cloth and all other manufac-
tures woven of wool, flax, silk, cotton, or any other materials
whatever," should not be reckoned as contraband or prohibited
goods. It was claimed also in behalf of the memorialist that
there was no effl'ective blockade of the port of Wilmington on
August 6, 1861.
3318 INTERNATIONAL ABBITBATIONS.
Gounsol for the United States contended that De Bebian,
being merely an agent, bad no interest in the letter of credit,
and that the third and fourth items of the claim were therefore
excluded from consideration; and that, as to the first, second,
and fifth items for damages for illegal treatment sustained by
De Bebian in his own person, no recovery could be made by his
heir-at-law. As to the case as a whole, it was contended by
counsel for the United States that if De Bebian were alive the
claim must be rejected. The position of the United States
was presented thus: By the proclamation of the President of
April 27, 1861, a blockade was declared of all the ports of the
States of Virginia and North Carolina. The Adelso sailed
from Wilmington with a cargo of turpentine and rosin taken
on board after the blockade was declared. The circumstance
that De Bebian had among his papers a set of signals for the
use of the vessel that should take the return cargo was
important as establishing beyond controversy his knowledge
of the state of blockade, and the fact that the blockade was
effective. It also fastened upon him the responsibility of giv-
ing aid and comfort to the enemy of the United States during
the time specified in the first article of the convention. The
escape of the vessel was a violation of the blockade, an#
De Bebian in his capacity as agent of the house of Parsley &
Go., and in his character as purchaser of goods to be used for
the support of the army of the Confederate States, was an
active party to the violation of the blockade. The rule of law
as laid down by Sir William Scott was this: That when there
was an actual blockade, and the party charged with violating
it had knowledge of its existence, it was unlawful for him to
go in or come out with a cargo laden after the commencement
of the blockade. (Lawrence's Wheaton's Elements of Inter-
national Law, p. 577.) It was not anticipated, said counsel for
the United States, that an attempt would be made to maintain
the position that the blockade declared April 27, 1861, was not
effective in the month of August in that year; but any such
averment must fail in presence of the fact of De Bebian's i>os-
session of the system of signals referred to. The rule of law
in regard to blockade was fatal to the claim for compensation
for loss of property. A vessel which has run a blockade is
liable to seizure and confiscation if arrested at any point
between the place of departure and the port of final destina-
tion. The same rule applied to the cargo, subject only to the
condition that the owners of the articles shipped were at the
ARREST, IMPRISONMENT, AND DETENTION. 3319
time of the shipment apprised of the existence of the blockade.
(Phillimore, International Law, vol. 3, par. 406.) Parsley &
Go. and De Bebian had kno\v ledge of the blockade, and it fol-
lowed that whatever interest De Bebian had in the letter of
credit, or in any other property for which he might otherwise
have claimed compensation, he was barred by the fact of sach
knowledge. Sammed up, the defense against the claim was,
first, that whatever rights of property De Bebian had were
forfeited by the rules of public law in regard to the violation
of a legally established blockade; second, that the claim on
account of personal injuries did not survive to his heirs-atlaw;
and third, that in running the blockade and in transmitting
of correspondence in violation of the nonintercourse act, he
gave aid and comfort to the enemies of the United States.
The commission, by the concurrence of Baron de Arinos and
Commissioner Aldis, disallowed the claim; but the grounds of
disallowance were not stated.
Augu9ia de Behian v. United Siates, No. 557, Boatwell's Report, 114; com-
mission under the convention between the United States and France, of
January 15, 1880.
Henry Dubos, a citizen of France, presented
Bobot'i Caie. to the commission, under the treaty between
the United States and France of January 15,
1880, a claim against the United States (No. 26, French docket)
for $25,000 damages for his arrest at New Orleans, September
6, 1862, and his confinment in the custom house and at Ship
Island till the 24th of December, by order of General Butler.
Dubos was a writer for a newspaper published at New Or-
leans called Le Compilateur^ and was a resident of that city
when it wa« captured by the United States forces. On May 1,
1862, General Butler, as commander in chief, proclaimed mar-
.tial law there, and in his proclamation among other things
said : " No publication, either by newspaper, pamphlet, or hand-
bill, giving accounts of the movements of soldiers of the
United States within this department, reflecting in any way
upon the United States or its ofiicers, or tending in any way
to influence the public mind against the Government of the
United States, will be permitted." It was apparent that the
articles written by Dubos, and signed by him and published
in the Gompilateur were a violation of this proclamation and
although the point was contested by counsel, the majority of
the commission in their findings accept the fact as established.
3320 INTERNATIONAL ARBITBATIONS.
In the proclamation of Creneral Bntler there was also this
declaration : '^All foreigners not naturalized and claiming alle-
giance to their respective governments, and not having made
oath of allegiance to the supposed government of the Confed-
erate States, will be protected in their x)ersons and property as
heretofore under the laws of the United States." It was
claimed by counsel for the memorialist that this was a guar-
anty by General Butler that he would not enforce martial law
against the class of citizens described, of which Dubos was
one.
It appeared that on the morning after the proclamation was
issued General Butler appointed Major Bell provost-judge, and
Colonel French provost-marshal; that Colonel French then
notified the public that he assumed the position for the pur-
pose of carrying out such of the provisions of the proclama-
tion as were not left to the municipal action; and that he
called attention particularly to the prohibition against the
publication in newspax>ers of notices and resolutions in com-
mendation of the enemies of the United States. The record
showed, however, that General Bntler assumed personal juris-
diction of the case of Dubos, and that it was upon his order
that Dubos was first confined in the custom-house at New Or-
leans and afterward sent to Ship Island
The majority of the commission, Baron de
Award. Arinos and M. de Geoft'oy, gave judgment tor
the claimant in the sum of $800.
Mr. Aldis, the commissioner for the United States, filed a
dissenting opinion, but he also stated that, upon consultation
with his colleagues, he found that they concurred with him in
these propositions:
'^Ist. That General Butler had authority to declare martial
law in New Orleans, and that his proclamation of martial law
was both authorized and justifiable;
<<2d. That it applied to aliens in New Orleans, and that
they were bound to obey its regulations the same as other in-
habitants of the city;
<<3d. That Dubos, in publishing the articles complained of,
exposed himself to arrest by the military authorities;
'^4th. That his arrest was therefore in the first instance
justifiable."
But he added that his colleagues held <^that Dubos should
have been tried by a military commission for the offenses
charged against him; that General Bntler did not establish
arbitrary government, but settled and recognized certain
ARREST, IMPRISONMENT, AND DETENTION. 3321
restrictions to his own aathority, and announced the princi-
ples and rules of his administration, and that the instructions
for the goyemment of the armies of the United States in the
field required that < whenever feasible martial law should be
carried out in cases of individual offenders by military courts.' "
It appears by this statement that the award was based not
upon the absence of authority in the commanding general to
proclaim martial law, nor upon the fact that his requirements
were not reasonable, nor upon the fact that Dubos was not guilty
of a violation of the rules so established, but upon the ground
that the imposition of the penalty by the act of the command-
ing general was a violation of his own proclamation, and also
of the rules and articles of war.
In the opinion of Mr. Aldis it was stated that General But-
ler communicated to the Department of State of the United
States on September 14, 1862, the fact of the arrest of Dubos
and copies of the articles written by him; that on October 10
the French legation made an application in Dubos's behalf;
that Mr. Seward replied that <^ the journal in which Dubos
published his articles was devoted in nearly all its columns to
the instigation of treason and civil war against the United
States, and that the articles therein which are signed by Mr.
Dubos, if they were as innocent in purpose as he is now under-
stood to allege, are, from their nature and from the character
of the organ which has published them, calculated to add to
the civil war already prevailing in New Orleans the aggrava-
tion of even a servile war, or war of races;" and that the
President referred the matter to General Butler, with the sug-
gestion that he '^ would be gratified with any solution of it
which will be agreeable to Viscount Treilhard and Mr. Fan-
connet, and at the same time will not endanger the public
peace and safety and that public respect for the authority of
the United States which can not be allowed to be impaired."
Pxopontioiii msin- ^r. Aldis in his opinion maintained the
tainedbj Mr. Aldis. following propositions:
"I. Every foreigner owes obedience to the laws of the country in whicli
he resides; and every government has the sovereign right to punish vio-
lations of the law on its own soil according to its own laws and the judg-
ment of its own tribunals, and without interference from other nations,
so long as the law and the punishment do not conflict with international
law. If the law is in conflict with international law, is opposed to the
pablic law of civilized states, then the foreigner who is punished for
the violation of such laws mixy be entitled to redress; otherwise he is
not. * • •
3322 INTERNATIONAL ARBITRATIONS.
tt
II. 0/ Martial Law,—The Constitation of the United States, like the
supreme law of all other goyemmentSy authorizes it to make war and to
suppress insurreoiion. (Art. 1, sec. 8.) It has the right to raise armies, to
carry on military operations in the usual mode and according to the laws
and usages of war, and to do all that may be necessary to defeat the ope-
rations and machinations of the enemy ; and when necessary within the
theater of military operations and of the occupancy and movements of its
armies, to govern by martial law, and within such sphere to supersede by
martial law the civil or municipal law. And this martial law exists, not
by any authority derived from the Constitution, but by the laws of war as
recognized by the laws of nations, and grows out of war and its necessi-
ties; and where it lawfully and necessarily exists 'sweeps civil law by the
board aud takes the place of Ui.* (See J. Q. Adams's speech in Congress,
April 1842.) * * " Where martial law exists searches and seizures
may be made without warrant, and persons may bo arrested and impris-
oned without process.
** Martial law is law. It is the will of the commander of the army. Not
an arbitrary and lawless will, but a will governed by the laws and usages
of war, and which by necessity becomes the supreme legal authority and
for the time takes the place of all other law to a greater or less extent, as
necessity may require. It is equally binding as the civil law upon all
who are within its jurisdiction. * • »
''The commanding officer must of necessity determine in the first in-
stance as to its necessity, extent, and continuance, but he is subject to
the control of the Executive, and must receive the express or implied
sanction of Congress afterward.
"III. Martial law as recognized in the United States. — Martial law,
arising from necessity and during war, in camps, garrisons, and the
vicinity of military occupancy and operations, is and always has been
held as valid law, existing by authority in the United States whenever
the occasion for it arises. « * *
"Qeneral Jackson, commander of the United States forces at New Or-
leans, on the 15th of December 1814 proclaimed martial law. fie deemed
it necessary for the defense of the city. On the 8th of January 1815 the
battle of New Orleans was fought, and the American victory secured the
city. On the 15th of March 1815 Judge Hall granted a writ of habeas
corpus for the relief of one Louallier, who had been arrested by the mili-
tary. General Jackson, under martial law, thereupon arrested Judge Hall.
Four or five months after, when peace came and martial law had ceased to
exist. Judge Hall arrested General Jackson for contempt of court in dis-
regarding the habeas corpus. General Jackson appeared and sought to
justify his act, but Judge Hall would not listen to the defense, and fined
General Jackson $],0(X), which he paid. In 1842 a bill was introduced to
Congress to reimburse General Jackson for the $1,000 so paid, and interest.
The title of the bill was ' to indemnify General Jackson for damage sustained
in the discharge of his official duty,' It was proposed to change the title
of the bill, and call it a bill 'for the relief of (xeneral Jackson,' so that,
in the language of the committee, 'no inference should be drawn from
the passing of it, that a military officer had legal authority to establish
martial law.' The minority report opposed the amendment because 'in
time of war and imminent public danger it may be the duty of the
ARREST, IMPRISONMENT, AND DETENTION. 3323
military commander to arrest those regarded as traitors, spies, or muti-
neers within his camp. The act was jusiiflahhf not merely excusable; it
was demanded hy a great and overruling necessity.' Thus this precise
issue came hefore Congress.
"Mr. Buchanan, then in the Senate, afterward President, sustained the
hill as it stood, and upon the ground that martial law was justified by
necessity. The Senate rejected the amendment and passed the bill as it
st'iod, Congress thus recognizing thai the act of General Jackson was done in
the discharge of his official duty,
" Mr. John Quincy Adams, who was President of the United States, and
is justly regarded as high authority on all questions of international law,
in a speech before Congress in April 1842 said : * General Jackson was act-
ing under the laws of war. * * * In actual war, whether servile, civilf
or foreign, the laws of war take precedence. • • * The powers inci-
dental to war are derived not from any internal municipal source, hut from the
laws and usages of nations. There are, then, two classes of powers, different
and often incompatible with each other. The peace power limited by the
Constitution. The war power limited only by the laws and usages of
nations. The power is tremendous. It is strictly constitutional, but it
breaks down every barrier so anxiously erected for the protection of lib-
erty, property, and life.'
** President Lincoln recognized the same principle, and acted upon it in
numberless cases throughout the war. The first notable act was in the
case of Merryman, arrested by General Cadwallader in May 1861j at the
very beginning of the war; and in his case the opinion of C. J. Taney was
not sustained. It was disregarded by the government, by the courts, and
held unsound by the great jurists. President Lincoln's idea of the right
to establish martial law is best shown in the ' Instructions for the Govern-
ment of Armies of the United States in the Field,' prepared by Dr. Lieber,
and approved by the President.
•* We quote the first four instructions from General Orders, No. 100:
'^ ^1. A place, district, or country occupied by an enemy stands in con-
sequence of the occupation, under the martial law of the invading or oc-
cupying army, whether any proclamation declaring martial law, or any
public warning to the inhabitants, has been issued or not. Martial law is
the immediate and direct effect and consequence of occupation or conquest.
The presence of a hostile army proclaims its martial law.
***2. Martial law does not cease during the hostile occupation, except
by special proclamation, ordered by the commander in chief; or, by special
mention in the treaty of peace concluding the war, when the occupation
of a place or territory continues beyond the conclusion of peace as one of
the conditions of the same.
"'3. Martial law in a hostile country consists in the suspension, by the
occupying military authority, of the criminal and civil laws, and of the
domestic administration and government in the occupied place or terri-
tory, and in the substitution of military rule and force for the same, as
well as in the dictation of general laws, as far as military necessity requires
this suspension, substitution, or dictation.
«' The commander of the forces may proclaim that the administration
of all civil and penal law shall continue, either wholly or in part, as in
time of peace, unless otherwise ordered by the military authority.
3324 INTERNATIONAL ARBITRATIONS.
***i. Martial law is simple military aathority exercised in aooordanoe
with the laws and usages of war. Military oppression is not martial law ;
it is the abase of the power which that law confers. As martial law is
executed by military force, it is incumbent upon those who administer it
to be strictly guided by the principles of Justice, honor, and humanity —
virtues adorning a soldier even more than other men, for the very reason
that he possesses the power of his arms against the unarmed.'
'' So in his proclamation of September 24, 1862, it is ordered—
" ' That during the existing insurrection, and as a means for suppressing
the same, all rebels • * • and all persons guilty of any disloyal prac-
tice, affording aid and comfort to rebels against the authority of the
United States, shall be subject to martial law.
" 'And the writ of habeas corpus is suspended in respect to all persons
arrested, or now or hereafter imprisoned in any place of confinement by
any military authority.'
"This proclamation applied to Dubos, who was then (September 24,
1862) arrested and about to be sent to Ship Island.
" On the 3d of March 1863 Congress by its act of that day ratified the
action of the President.
''In the celebrated case of Luther v, Borden (7 How. 1), where the
question arose as to the illegality of martial law, declared by the legisla-
ture of the State in the case of threatening insurrection. Chief Justice
Tanbt says : * * * ' If the government of Rhode Island deemed the
armed opposition so formidable and so ramified throughout the State as
to require the use of its military force and the declaration of martial law,
we see no ground upon which this court can question its authority. It
was a state of war, and the estahltBhed gorernment retorted to the rights and
ueages of war. In that state of things the military offioere might lawfully
arreet anyone who they had reasonable grounds to believe wat engaged in the
ineurrectionJ • • *
" In Milligan*s case (4 Wall. 2) the subject of martial law declared in
States not in insurrection and where the courts were open was fully con-
sidered. The counsel for the government attempted to justify, by the law
and usages of war, acts under martial law committed in Indiana, a State
never in insurrection and where the courts were open and Milligan might
have been tried in the ordinary and peaceful course of law. Judge Davis
(p. 121), in delivering the opinion of the court, said: ' It is idle to inquire
what the laws and usages of war are. They can never be applied to citi-
zens in States which have upheld the authority of government, and where
the courts are open and process unobstructed.' But (on p. 127) he recog-
nizes the very right the government counsel here contends for. He says :
' There are occasions where martial law can be properly applied. X^ in
foreign invasion or civil war the courts are actually closed, and it is im-
possible to administer criminal justice according to law, then on the
theater of active military operations where war prevails, there is a neces-
sity to furnish a substitute for the civil authority ; and as no power is left
but the military, it is allowed to govern by martial rule until the laws
can have their full course. As necessity creates the rule so it limits its
duration.' • • *
"This case was decided by five judges to four. And the four (Chief
Jnttioe Chase and Justices Wayne, Swayne, and Miller), through Chief
ARREST, IMPRISONMENT, AND DETENTION. 3325
Justice Chase, said: 'We are unwilling to give onr assent by silence to
expressions of opinion which seem to ns calculated, though not intended,
to cripple the constitutional powers of the government and to augment
the public dangers in times of invasion and rebellion/ He therefore ex-
pressly stated 'that military jurisdiction may be exercised, in time of
rebellion and civil war, within States or districts occupied by rebels
treated as belligerents, by the military commander under the direction of
the President, with the express or implied sanction of Congress, and it
supersedes the local law.'
** But, if any uncertainty has ever existed upon the question, the recent
decision of the United States Supreme Court in the case of The United
States r. Diekelman (92 U. S. S. C. Rep. 520; 2 Otto, 520) completely settles
the right of the United States to establish martial law, and settles it aa to
New Orleans under General Butler in 1862 and as to foreUfners in New Or-
leans as well as to American citizens. Chief Justice Waite, in delivering
the opinion, says:
" ' I. As to the general law of nations.
" 'The merchant vessels of one country visiting tbe ports of another for
the purposes of trade subject themselves to the laws which govern the
port they visit so long as they remain, and this as well in war as in peace,
unless it is otherwise provided by treaty.
" 'The law by which the city (New Orleans) and port were governed
was martial law. This ought to have been expected by Diekelman when
he dispatched his vessel from Liverpool. Tbe place had been wrested
from the possession of the enemy only a few days before the issue of the
proclamation, after a long and desperate struggle. It was, in fact, a gar-
risoned dly, held as an outpost of the Union army, and closely besieged by
land. • * • When he entered the port, therefore, with his vessel under
the special license of the proclamation, he became entitled to all the rights
and privileges that would have been accorded to a loyal citizen of the
United States under the same circumstances, but no more. Such restric-
tions as were placed upon citizens operated equally upon him. Citizens
were governed by martial law. It was his duty to submit to the same
authority.
*' ' Martial law is the law of military necessity in the actual presence of
war. It is administered by the general of the army, and is, in fact, his
will. Of necessity it is arbitrary, but it must be obeyed. • » •
" 'To this law and this government the Essex subjected herself when
she came into port.
"'General Butler found on board this vessel articles which he had
reasonable cause to believe, and did believe, were contraband, because
intended to promote the rebellion. It was his duty, therefore, under his
express instructions, to see that the vessel was not cleared with those
articles on board, and he gave orders accordingly. It matters not now
whether the property suspected was in fact contraband or not. It is suf-
ficient for us that he had renson to believef and in fact did believe, it to be con-
traband. No attempt has been nuide to show that he wa^ not acting in good
faith.'
" A recent work on military law by Lieut. Ives, assistant professor of
law at West Point, 1879, contains a very satisfactory summary of the laws
of the United States as to martial law. * • «
3326 INTERNATIONAL ARBITRATIONS.
'' I think there can be no doubt but that the right to declare martial
law, as exercised by Qeneral Butler at New Orleans in 1862, is fully recog-
nized as a legal right by the President, the Supreme Court, and by Con-
gress, and is the law of the United States.
"lY. Ja the law of the United States in conflict with the law of ftatiofuf—
Such being the law of the United States, can the action of the Govern-
ment of the United States, under it and within the territory of the United
States, be questioned or interfered with by any foreign state f Clearly
not, unless such law is in conflict with international law.
'* I am fully satisfied it is not in conflict with, but is in harmony with,
the law and practice of all civilized States. It is the law of war as recog-
nized by the law of nations.
^* England. — Notwithstanding the confusion of martial with military
law which has sometimes prevailed among English writers and Judges
and the erroneous dicta which may be found upon the point, the better
opinion has been held by their best writers and judges for more than a
century that in case of war or insurrection martial law may be established
if necessity requires it, and it will then supersede the civil and criminal
law. The only point in doubt is whether on English soil the declaration
of martial law is a prerogative of the crown, or must, to be legal, be
established or approved by Parliament. * * * But in England very
high authorities hold that in war and in case of necessity it may be estab-
lished in territory subject to English law by the mere order of the military
commander. * * * In Tytler*s (afterward Lord Woodhouselee's) work
on courts-martial I find an illustration so apposite, and the reasons for
martial law so admirably expressed and so universal in their application,
that I can not forbear to cite them. Speaking of martial law, he says
(pp. 366, 367): 'Absolute necessity authorizes the application of extraor-
dinary remedies. It is for the security of the state. The slow and cautious
procedure of the ordinary courts of justice keeps no pace with that daring
celerity which attends the operations of rebellion ; nor are their regulated
forms and publicity of procedure fitted to bring to light the dark designs
of a conspiracy. It is a remedy warranted only by the last necessity, and
therefore to be commensurate in the endurance of its operations to the
immediate season of danger — an expedient which requires us to part with
our liberty for a while in order that we may preserve it forever,^ The last is
the phrase used by Judge Blackstone is his commentaries.
"On the 24th of May 1798 the Earl of Camden, lord lieutenant of Ire-
land, on account of insurrection and public disorders, proclaimed martial
law, which afterward being made known to Parliament, received 'its
entire approbation.' Parliament thereupon passed the act of 1798, which
was much more stringent than any of the orders of the United States
Government during the rebellion. It stated that the exercise of marshal
law was the undoubted prerogative of His Majesty, and it authorized it
'whether the ordinary courts of justice are or are not open; and that
it should continue from time to time during the continuance of the
rebellion.' (See Tytler's Courts-Martial, App. VI. pp. 402, 403.)
''In February 1818, Sir Robert Brownrigg, the governor, proclaimed
martial law in India.
"In Ceylon, Viscount Torrington, upon apprehended insurrection, on the
29th July 1848 proclaimed martial law, and it was continued till October 10.
ARREST, IMPRISONMENT, AND DETENTION. 3327
Several rebels were executed. The oondnct of Viscoant Torrington was
much aDimadverted upon, and the qnestion came up in Parliament. His
defense (see 115 Hans. Pari. deb. 3d series, p. 843, et seq.) throws ranch
li^ht upon the recognized practice of the English Government. * * »
In the debate in Parliament the Dnke of Wellington ' contended that mar-
tial law was neither more nor less than the will of the general who com-
manded the army. In fact, martial law meant no law at all. Therefore
the general who declared martial law, and commanded that it should be
carried into execution, was bound to lay down distinctly the rules and
regulations and limits, according to which his will was to be carried out.'
In this respect General Butler's proclamation of May 1, 1862, and his sub-
sequent orders from time to time, conformed fully to the rule of duty pre-
scribed by the Duke of Wellington: 'Now, he had, in another country,
carried on martial law ; that was to say, that he bad governed a large
proportion of the population of a country by his own will. But then
what did he do f He declared that the country should be governed accord-
ing to its own national laws, and he carried into execution that will. He
governed the country strictly by the laws of the country, and he gov-
erned it with such moderation, he must say, that political servants and
judges, who at first had fled or had been expelled, afterward coMenied to act
under hi9 direction. The Judges sat in the courts of law conducting their
judicial business and administering the law under h%» direction J
<< The Earl Grey said : ' I was glad to hear what the noble Duke said with
reference to what is the true nature of martial law. It is exactly in
accordance with what I myself wrote to my noble friend at the period of
those transactions in Ceylon. I am sure that was not wrong in law, for I
had the advice of Lord Tottenham and Lord Campbell, and the attorney-
general, and I explained to my noble friend that what is called proclaiming
martial law is no law at all, hut merely for the sake of public safety , in cir-
cum9tanota of great emergency setting aside all lawy and acting under the mili-
tary power, a proceeding which requires to be followed by an act of indem-
nity when the disturbances are at an end.' The opinion expressed by Earl
Grey, that an act of indemnity was necessary, does not seem warranted by
the practice of the English Parliament. No such indemnity appears to
have been re<iuired for the Duke of Wellington or any other of the mili-
tary commanders who have exercised the power. Their j ustification stands
upon the law of nations that gives in time of war to the military com-
mander the right to govern by his own will the hostile territory he con-
quers or occupies.
''In regard to France and the other great states of the Continent of
Europe, I find it stated in the opinion of Attorney-General dishing (8
Atty. Gen. Op. 371)—
" 'That the state of sie^e may have a lawful origin, like the state of war,
either in an act of the political sovereignty or in the necessity of circum-
stances. When it exists, all the local authority passes to the military com-
mander, who exercises it in his own person, or delegates it if bo pleases to
the civil magistrates, to be exercised by them under his orders. The civil
law is suspended for the time being, or at least made subordinate, and its
place is taken by martial law, under the supreme, if not the direct, admin-
istration of the military power.
3328 INTERNATIONAL ARBITRATIONS.
'' 'The state of siege may exist in a city or in a district of the country,
either by reason of the same being aotaally besieged or invested by a hos-
tile force, or by reason of domestic insurrection. In either ease it is the pre-
cise fact with which we are now concerned. The state of siege of the
continental jurists is the proclamation of martial law of England and the
United States, only we are without law on the subject, while in other
countries it is regulated by known limitations. (Maurice Block, s. voc.
See also Escriche, s. voc, for similar legal provisions in Spain.)'
'^A reference to the French code and statutes confirms this statement.
** v. This principle, resting upon the law and usages of war, is admitted
by the counsel of the claimant to be correct when applied to foreign war.
But they attempt to distinguish between a foreign war and domestic
insurrection.
'' It will be seen from the authorities already quoted (Judge Woodbury,
Judge Davis, Judge Waite, Ives' Military Law, Dr. Lieber, and Attomey-
Oeneral Gushing, and the practice in England and France) that no such
distinction is recognized ; that the same rule of war as to the exercise of
martial law applies as well to domestic insurrection as to foreign wars.
Indeed, in domestic conspiracies and insurrections the secrecy and ' daring
celerity ' of the rebels and conspirators make martial law more necessary
than in the regular and publicly known operations of war between states.
In these days when nihilists and communists are conspiring against law,
government, and the public peace in Russia and France, neither of those
great powers can safely forego the necessary exercise of martial law.
'* Martial law at Neio Orleans : Louisiana in May 1862 was as much hostile
territory as if it had never belonged to the United States. For fifteen
months the United States laws, courts, and judges had been overturned
and superseded by the Confederacy. No man could hold an office without
an oath of allegiance to the Confederacy. The population of New Or-
leans, whether native or foreign, was nearly unanimous in violent oppo-
sition to the United States. No Union man could express an opinion
favorable to the United States, except at the risk of his life. A general
invading a foreign country could not have found himself more completely
surrounded by a hostile population than was General Butler at New Or-
leans. The Confederates had left the city, but were closely besieging it
with a large army under Geueral Lovell. Correspondence between the
rebels in the city and General Lovell and the besieging forces outside was
constant, and the utmost vigilance could not prevent it.
^'1. Before the capture of the city the Confederate General Lovell was
obliged to adopt martial law.
''2. When he left, and during the interval before General Butler came,
the safety of the city from riot and mob rule was secured only by the em-
ployment of the European legion by the mayor for that purpose. The
terror and fear that prevailed among the better classes is shown by the
letter which Mr. Forstall, the agent of Hope &, Co., of Amsterdam, wrote
to them on May 13, 1862, in regard to the $8(X),000 of silver placed in his
hand on their account. He says : ' The great apprehension at that time,
in the event of the fall of New Orleans, wjvs not the action of the Federal
government, which until then on similar events had left private property
undisturbed, but the destruction of property and sacking of banks by the
rabble out of a mixed population of nearly two hundred thousand, pend-
ing the consequent delays of an abrnpt and violent change of govern-
ABBE8T, IMPRISONMENT, AND DETENTION. 3329
ment, and the event proved that snch apprehension was not idle, for after
the destmction and robbery of an immense amount of property on our
wharves and some ot our front stores and warehouses, a general plunder
of the city would have taken place by the rabble after the retreat of the
Confederate troops but for the armed interference, night and day, of the
French and foreign brigades for nearly six days, when the Federal troops
took charge of the city with a sufficient force to maintain order.' (Par-
ton, p. 373.)
** 3. The proclamation of martial law by General Butler was a necessity.
It was the only means to save the city. It was approved by President
Lincoln, by Congress, and by the country. * <* • General Butler at
first attempted to govern by leaving the municipal government to the
mayor and common council, and the administration of criminal justice to
the Judges or recorders then in office. But finding, as he believed, that
these Confederate officials were sending aid to General Lovell, and could
not be trusted, and would not do their duty, on the 20th May he suspended
them from the functions of their offices and appointed General Shepley
military commandant of the city, and established a provost court, with
Major Bell provost judge. (See General Shepley's ' Notice,' Parton, p. 336. )
In August 1862 General Butler wrote to the French consul, who complained
of his order requiring citizens to give up their arms : ' Whenever the inhab-
itants of this city will, by a public and united act, show both their loyalty
and neutrality, I shall be glad of their aid to keep the peace, and restore
the city to them. Till that time, however, I «must require the arms of all
the inhabitants, white and black, to be under my control.'
** VI. But it is claimed that General Butler excepted foreigners from the
operation of martial law. His words are : 'All foreigners will be protected
in their persons and property, as heretofore, under the laws of the United
States.' This did not exempt them from martial law, but assured them of
protection of their persons and property, now under martial law, as here-
tofore under the laws of the United States.
Its meaning was that martial law should protect their persons and prop-
erty— not that they should be exempt from its operation. In reason, no
distinction of the kind could be made. All must be subject to martial
law. Foreigners, though they ought to be neutral (and many of them
were), in fact were often engaged in aiding the rebellion. General But-
ler's letter to the French consul of August 14, 1862, shows this. He says :
• • • « J trust most of your countrymen are in good faith neutral; but
it is unfortunately true some of them are not. This causes the good, of
necessity, to suffer for the acts of the bad. I take leave to call your atten-
tion to the fact that the United States forces gave every immunity to
Monsieur Bonnegrass, who claimed to be the French consul at Baton
Rouge, allowed him to keep his arms, and relied upon his neutrality; but
his son was taken prisoner on the battlefield in arms against us. You
will also do me the favor to remember that very few of the French subjects
here have taken the oath of neutrality, which was offered to but not re-
quired of them, by my order. No. 41, although all the officers of the French
legion had, with your knowledge and assent, taken the oath to support
the constitution of the Confederate States.' • * • (Parton's General
Butler in New Orleans, p. 465. See also General Butler's letter to the con-
suU, Parton, pp. 456, 457, 458. ) * * *
3330 INTERNATIONAL ARBITRATIONS.
''Such a meaning as is now given to this phrase by the claimants wa$
not intended by General Butler, nor was it so understood or claimed by foreigners
at the time. In May 1862, in requiring the British members of the European
brigade, who had given their arms to Beauregard, to leave the city in
twenty-four hours (Parton, p. 357) ; in his many dealings with foreign con-
suls, and especially with the French consul^ Count M6Janj (see Butler's
letter to the Secretary of War, Parton, 378), he always held foreigners, like
natives, to be subject to martial law ; and the foreigners and foreign consuls
did not claim the contrary. See General Butler's letter to the English,
f^nch, and Qreek consuls of June 12, 1862 (Parton, p. 383), in which he
says : ' In order to prevent all misconception, and that for the future yon
gentlemen may know exactly the position upon which I act in regard to
foreigners, resident here, permit me to explaim to you that I think a foreign
resident here has not one right more than an American citizen, but at least one
right less; i. e., that of meddling or interfering by discussion, vote, or othevwise
with the affairs of the government,' This was well known in ^ew Orleans three
months before Dubos was arrested. In his proclamation of martial law
on May 1, he says: 'No publication, either by newspapers, pamphlets, cr
handbills, giving accounts of the movements of the soldiers of the United
States within this department, reflecting in any way upon the United States
or its officers, or tending in any way to influence the public mind against the
Government of the United States, will be permitted.' Can auy one suppose
that native citizens only were prohibited from doing such acts, but that
foreigners would be allowed in doing themf
"VII. The claimant's counsel contends that claimant's arrest and im-
prisonment wore illegal, because he was not tried by a military commission.
"1. Qeneral Butler gave to his provost court the jurisdiction of 'high
crimes and misdemeanors.' If he thought Dubos's act a minor offense, or
for any other sufficient cause saw fit to withhold it from the provost court,
he had the right to do so.
"2. As the will of the commander is the basis of martial law, he may
or may not resort to a military commission as he thinks best. Ordi-
narily, he does resort to a commission to ascertain the facts, as he has
no time for such trials. The law he decides for himself. But where there
are no facts in dispute, where the alleged offender admits the facts, there
a military commission is not resorted to, because it would be superfluous.
That is this case. Dubos admitted then, aud admits now, that he wrote
and published the articles complained of. * * *
"VIII. Character of the articles published by Dubos, — General Butler de-
cided that the article did so violate the law. That decision was clearly
right. The President and Mr. Seward went further, and said they were
calculated to add to the civil war the aggravation of even a servile war.
Mr. Dubos was a neutral ; only two years in this country. It was his duty
as a neutral and an honorable man to abstain wholly from intermeddling
with politics ; above all, from exasperating the public mind against the
government. Instead of this, he wrote in an ironical way to throw con-
tempt on President Lincoln, on General Butler, ou the Union Army, to
discredit the Union journals as always telling lies, and to stir up the slave
holders to greater violence against the government and to greater severity
against the slaves. When arrested he made no excuse or apology. He
gave no promise to amend his conduct, but aggravated his offense by the
ARREST, IMPRISONMENT, AND DETENTION. 3331
•
insincere pretense that the articles were 'jocular/ ' semibnrlesqne/ and
'not intended to attack the cause of the United States.'
The <tme when they were published added to the evil influence they
were calculated to exert. It was August 1862; the month when great
disasters in Virginia had smitten the Union army and cause, and a
Confederate army was within a few miles of Washington ; when- the rebels
were greatly elated and expected a speedy triumph and to soon retake
New Orleans; when the Confederate General Jeff. Thompson wrote to
General Butler 'that they would have New Orleans in a few days/ (Par-
ton, p. 474.) That was a bad time to sneer at 'the invincibility of the
Union arms, and that they were the terror of the entire world ; that France
and England would be but a mouthful to them.' Such insulting language
published in New Orleans, among an excitable and bitter population of
rebels, was well calculated to give 'aid and comfort' to the rebellion,
and at that moment to stir the public mind to violence and insurrec-
tion. • * *
"If when arrested he had made such expressions of regret and such
promises of good conduct in the future as be ought to have made, and
could have made with honor, he would doubtless have been relieved from
punishment. This is probable, for on the the previous day (September 5)
General Butler had permitted the Esiafette dn Sud to resume publication
upon the pledge of such assurances.
"IX. It is alleged that Dubos received ' inhuman treatment' while in
custody, and fur this reason it is sought to iu crease the damages.
" 1. Mr. Dubos does not say he was treated 'inhumanly.' While at the
custom-house he 'was in a room with ei^ht or nine other persons.' But
he does not pretend that they were convicts or felons. He gives the names
of three of them * * * all believed to be respectable persons. ' I lost
all my bedding aud had nothing to sleep on for iive or six days.' He does
not say that it was lost by the fault of the government, or that the govern-
ment could have furnished him with beddiug ' for five or six days.' Such
hardship could not be called 'inhuman,' even if it were proved to be the
act of the government. His next grievance was not a great one, and his
allusion to it shows that he really had no great grievance to complain of.
' The mosquitos were very bad, and I had no mostiuito bar to protect lue.'
He then says his eyesight was affected by the glare of the sun on the white
sand, and he suffered much pain from that cause. Dr. Batchelor, a Con-
federate prisoner with him, and who treated him at the time for the affec-
tion of his eyes, says : ' Having liberty to go around the house and in shady
places on the outside of the house, there was no necessity of his ex])osin((
himself to the glare of the sun so as to have it operate injuriously on his
eyes. He had the option of exposing himself or not, and if he did so it
%cas his own fault.* 'In sitting in the shade with a bank of sand ojiposite
it would be uncomfortable for the eye, but it would be very easy for him
te turu his eyes from it.' The room in which Dubos aud others were con-
fined was 'from 30 to 40 feet long,' and * about 16 or 18 wide.' ' It was
dry; bad two windows.' Mr. Gillis says: ' Our room was well ventilated.
We were treated with kindness and courtesy by the ofiBcers. Dubos
received the same treatment we did. Mr. Dubos coubl have remained
inside the building during the day or have seated himself outside' in the
shade.' Mr. Walker, a prisoner there, says: 'The treatment was very
5627— VOL. 4 7
«3332 INTEBNATIOXAL ABBITRATION8.
^ood; we were w«ll fed; were alloweil to bathe ander guard; the latious
abundant.' 'It was pleasant, so far as climate was concerned; the bath-
ing was fine; better than at the lakeside places; the food abundant and
good ; thf^ sleeping apartments good, and the expense little, only for extras
and laxurif^s.' The injnry to his eyes was bnt temporary. 'I now work
a great deal during the night by gaslight/ ^Dnbos, pp. 20 and 21.)
" It is not pretended that either General Butler or President Lincoln
were moved by evil intention to oppress Mr. Diibos or to gratify a spirit
of malice or revenge. On the contrary, it is plain that they acte<l from
a sense of dnty, and treated him with all the mildness that was possible
under the circumstances, and with all the furb4*arance his perversity and
foolhardiness would allow. Nor was there any harxh or inhuman treat-
ment. Nothing what4^ver should be allowed him for damages.
** X. Mr. Dubrw * gave aid and comfort to the relK'ls.* Such publications as
his, by influencing the minds of the F^rench ]>opulatiou to resistance against
the govemnieiit, were a more serious injury to the eanse of the United
States than if he had made a speech at a public meeting — ^more practically
injurious than if he had taken arms and joined the rebel army; and both
in intent and effeet gave * aid and comfort to the enemy.* For this reason
alone he is, in my judgment, barred from any compensation.
k
CHAPTER LX.
EXPULSION.
Orazio de Attellis, marquis of Santaugelo,
Cue of Ssnungeio. was expelled from Mexico in 1826. In 18^,
being assured that his return would be agree-
able to the authorities, he went back for the purpose of
establishing an educational institution. At the same time
he began the publication of a periodical devoted chiefly to the
discussion of literary and scientific topics. On June 24, 1835,
the President of the republic issued an order for his expulsion,
on the ground that he had ^^ occupied himself again in the
publication of a periodical in which some productions appear
which tend to ridicule the nation and to plunge it into anarchy."
What the productions were and what was their offeusive fea-
ture was not disclosed. The order of expulsion was issued
under a decree of the Mexican Congress of February 22, 1832,
conferring extraordinary powers on the President. The
American commissioners contended that the expulsion was
causeless and inspired by the same kind of personal enmities
that oC'Casioued the expulsion in 1826; that it was violative of
rights secured to inhabitants of the republic by the constitu-
tion, and that it infringed the treaty between the United
States and Mexico of April 5, 1831, which guaranteed to the
citizens of each country while within the jurisdiction of the
other " special protection" to their ''persons and property,"
"leaving open and free the tribunals of justice."
The claimant under the order of expulsion was allowed only
three days to reach Vera Cruz, whither he was to be taken
under a military escort and shii)ped out of the country. At
that time the yellow fever was raging at Vera Cruz, and some
of the claimant's family were stricken down. He was injured
iu health and reputation and ruined in fortune by his sudden
and harsh expulsion.
3333
3334 INTERNATIONAL ARBITRATIONS.
The American commissioDers awarded $24,592.50 for the first
expulsion, but the umpire disallowed the claim on the ground
that Santangelo was not at that time a citizen of the United
States, though he had made a declaration of intention to be-
come one. He was, however, naturalized in 1829, and for the
second expulsion, for which the American commissioners
awarded $54,588, the umpire allowed $50,000.
Case of Santangelo, commiHsion under the convention between the
United States and Mexico, of April II, 1839.
"Several memorials have been presented
^"^°^^**'.^* to the board by citizens of the United States
Act of March 8, 1848. j. • ti^ . ^ xi.
who were residing m Mexico at the com-
mencement of the late war with that country, setting forth,
severally, claims to indemnity for losses sustained by the
memorialists in consequence of having been expelled at short
notice, by order of the public authorities of Mexico, from the
places ot their residence and business in violation, as is al-
leged, of the twenty-sixth article of the treaty of April 5, 1831.
" By the law of nations, whenever a war breaks out between
two countries, the persons and property of one of them found
within the dominions of the other are liable to detention and
capture,
<' < When hostilities have commenced, the first objects that
naturally present themselves for detention and capture are the
persons and property of the enemy found within the territory
on tlie breaking out of the war. According to strict authority
a state has a right to deal as an enemy with persons and prop-
erty so found within its power, and to confiscate the property
and detain the persons as prisoners of war.' (Kent's Oom. vol.
1, pp. 55-56, citing Grotius, B. 3, C. 9, S. 4.)
'* This absolute right, however, has not been very rigorously
insisted upon, especially in modern times, although the United
States, during the late war with Great Britain, by the decision
of the Supreme Court maintained the sterner and ancient rule
of national law upon this subject to its full extent. (8 Cranch,
110, Brown vs. U, States^ 1 Kent, 59.) But, however absolute
the right may be, all writers on public law agree that it may
be modified and regulated by treaty ; and it is said that most
of the treaties of the present day make provision for such con-
tingencies. (1 Kent, 55-56.) And although, as a general prin-
ciple, the breaking out of war puts an end to all treaties be*
EXPULSION. 3335
tween the belligerents, yet it is not universally so. Kent,
vol. 1, p. 175, says:
"*A8 a general rule the obligations of treaties are dissi-
pated by hostility, and they are extinguished and gone forever
unless revived by a subsequent treaty. But if a treaty con-
t^ns any stipulations which contemplate a state of future >yar,
and make provision for such an exigency, they preserve their
force and obligation when a rupture takes place. All those
duties of which the exercise is not suspended necessarily by
the war subsist in their fiill force. The obligation of keeping
faith is so far from ceasing in time of war that its efficacy be-
comes increased from the increased necessity for it.' ' Where
treaties contemplate a permanent arrangement of national
rights, or which by their terms are meant to provide for an
intervening war, it would be against every principle of just
interpretation to hold them extinguished by the event of war.'
(lb. p. 177.)
"The twenty-sixth article of the treaty of April 5, 1831, be-
tween the United States and Mexico is in these words:
"*Abt.26. For the greatersecurity of the intercourse between
the citizens of the United States of America and the United
Mexican States, it is agreed, now for then, that if tliere should
be at any time hereafter an interruption of the friendly rela-
tions which now exist, or a war unhappily break out between
the two contracting parties, there shall be allowed the term of
six months to merchants residing on the coast and one year to
those residing in the interior of the States and Territories of
each other respectively to arrange their business, dispose of
their effects, or transport them wheresoever they may please,
giving them a safe conduct to protect them to the port they may
designate. Those citizens who may be established in the States
and Territories aforesaid, exercising any other occupation or
trade, shall be permitted to remain in the uninterrupted enjoy
ment of their liberty and property so long as they conduct
themselves peaceably and do not commit any offense against
the laws; and their goods and effects, of whatever class and
condition they may be, shall not be subject to any embargo or
sequestration whatever, nor to any charge nor tax other than
may be established upon similar goods and effects belongiu«r
to citizens of the State in which they reside respectively; nor
shall the debts between individuals, nor moneys in the public
funds, or in public or private banks, nor shares in companies,
be confiscated, embargoed, or detained."
"This article of the treaty secured to citizens of the United
States doing business as merchants and residing on the coast
the right to remain six months, and to those in the interior
f
3336 INTERNATIONAL ARBITRATIONS.
one year^ at their places of business for the purpose of arrang-
ing their affairs and disposing of their effects, or of transport-
ing them from the country. It did not give the right for any
other purpose; nor did it give the right of removal of the
person or his property to other places in the territory for the
purpose of extending trading operations or commencing new
branches of business. The puri)08e is explicitly stated. In
some of the memorials before the board it is alleged that by
reason of the expulsion of the claimant from the place of his
residence on the coast, Vera Cruz, Tampico, or Matamoras, he
was prevented from sending his merchandise into the interior
before those places were taken possession of by the American
arms, as other foreign merchants did, and that upon the open-
ing of those ports to importations of goods from the United
States, without payment of duties, prices considerably de-
clined, whereby the claimants sustained heavy losses ujion
their stocks of goods Altliough the language of the article
of tlie treaty above quoted is not entirely explicit, the obvious
constru('tion of it, in the opinion of the board, only guaranteed
to the merchant the right to remain at his place of business
and to dispose of his effects there in the same manner he had
been accustomed to do. The decline of prices consequent
upon the occupation of the ports by the American forces is
not attributable to any cause for which Mexico is responsible.
In the opinion of the board the expulsion of citizens of the
Tnited States from their x)laces of residence and business in
Mexico, during the existence of the late war, before ♦he expi-
ration of the period limited in the treaty, by the public author-
ities of Mexico, was in violation of their rights secured by
treaty, and constitutes a valid claim on the part of any persons
so expelled against that republic for all losses and damages
which shall be proved to result from such expulsion.
"By an order of the supreme government
Casesof Breeie,Chase, ^f Mexico, dated 12th of May 1846, and pro-
andtheZezeneaus. ^^l^^^wi"^ month, all citizens of the United
St:ites residing in any port which should be
visited by a vessel of war of the United States were, within the
period of eight days, to be sent into the mterior, twenty leagues
from the coast, unless they should prefer to embark within
that period, and all consuls and vice-consuls of the United
EXPULSION. 3337
states were immediately to cease their fanctioDS. The port
of Tampico having been entered by the United States vessel of
war 8t, Marifs in the mouth of June, this decree was enforced
against the citizens of the United States residing there.
"The claim of Franklin Chase, then consul of that port, has
already been decided to be valid, he having been compelled to
embark in consequence of the order above recited. Sidney
Udall, a citizen of the United States, a carpenter and builder
by trade, then residing in Tampico, was also re(|uired to leave
within the prescribed time, and was sent into the interior and
did not return to the city until after it was taken x>ossession
of by the American troops. He has presented a memorial to
the board claiming indemnity for the damages sustained by
him consequent upon such expulsion.
"The board is of opinion that this claim is valid and allows
the same accordingly, the amount to be awarded subject to the
future action of the board.
" In the month of April 1846, in consequence of the occupa-
tion of the left bank of the Eio Grande by the American troops
under General Taylor, an order was issued by General Ampudia,
then commanding the Mexican troops on the opposite bank,
requiring all citizens of the United States residing in Mata-
moras, and by another order those residing in Reynosa, to re-
move, or to be sent, into the interior within the period of
twenty-four hours from the promulgation of such orders, and
in consequence thereof Mr. John P. Schatzeil, then consul of
the United States at Matamoras, and several other citizens of
the United States, merchants and mechanics, were compelled
to leave their business and retire into the interior. General
Ampudia's order required them to go to Victoria. They left
Matamoras on the 12th of April, but went only about fifteen
miles from the city, where they remained several days. In the
mean time General Arista had superseded General Ampudia in
the command of the Mexican army, and an appeal was made to
him to revoke the order of expulsion issued by the latter, and
a protest was made against it as being in contravention of the
treatv of 1831. General Arista declined to revoke the order,
but so far modified it as to permit the parties to go to Tampico
and embark there, if they chose to do so, instead of going to
Victoria. Mr. Schatzeil and three or four others availed them-
selves of the permission and went to Tampico. Henry Breeze,
/
3338 INTERNATIONAL ARBITEATIONS.
one of the claimants, was permitted, upon his application, to
return to Matamoras after an absence of about twenty days.
It does not appear that be had been to a greater distance from
the city of Matamoras than Moquito, a place fifteen miles off.
But his memorial nevertheless sets forth that in consequence
of such expulsion he was compelled to abandon his affairs, and
'travel through a hostile country infested with robbers and
disease at the great risk of life and fortune.' Henry Gisner,
an American citizen residing at Matamoras, a combmaker by
trade, also sets forth in his memorial that he was expelled by
virtue of said order, ' and had to abandon his affairs and had
to travel through a hostile country infested with robbers and
disease, at the great risk of life and fortune;' and indeed all
the memorials contain the same allegation. Among the papers
furnished to the board by the State Department is a statement
made by Gisner upon oath, that owing to his inability he did
not leave the city under the order of General Ampudia, and
was in consequence arrested by the Mexican authorities and
imprisoned several days, when he was removed to a ranclio
about one league distant, where he was kept at labor for some
days longer, having been detained in the whole, about thirty
days. Several others, it also appears from tlie papers before
the board, remained at ranchos, or stock farms, at a short dis-
tance from the city, and yet they all recite that they were
compelled to travel through a country infested with robbers
and disease. These manifest and palpable exaggerations of
the grounds of claims are calculated to impair very seriously
the testimony adduced in supjwrt of the amount of losses set
forth by the memorialist respectively. Soon after the army of
the United States had taken possession of Matamoras these
memorialists leturned to that place and resumed their various
pursuits, from which they had been debarred about sixty days,
at most, some of them for a shorter i)eriod.
"in the opinion of the board, the claims of John P. Schat-
zell, George S. Miller, Henry Breeze, Joachim Fox, French
Strother, Adloph Zuzeneau, Pierre Zuzeneau, admin istrjitor of
Emilie Zuzeneau, deceased, tmd Henry Gisner, set forth in
their several memorials to this board, are valid claims against
the Republic of Mexico and the same are allowed accordingly,
the amount to be h warded to the said parties respectively to
be subject to the future action of the board.
EXPULSION. 3339
"Under one of tlie orders of General Am-
c«MiofEatt,MeMr-pudia before referred to, Elihu D. Smith, a
I7» R D. Bmitl^ ciijizen of the United States, then residing at
8 t even ion, and ^ . j • x j i • • •
Wethered. Beynosa, employed in trade and m ginning
cotton, was compelled to leave tbat place with
his family on the 9th of April 1840, and to remove to Victoria,
distant aboat three hundred miles. He was absent four
months. The board is of opinion that his claim, set forth
in his memorial, is valid, and allows the same accordingly,
the amount to be awarded subject to the future action of the
board.
" In the month of September 1846 seven American citizens
residing in Chihuahua were, by order of the governor of that
state, removed under a military guard to a mining town at a
distance of about ninety miles, in consequence of information
having been received of the occupation of Santa F6 and other
places in !N^ew Mexico by a portion of the forces of the United
States, and their expected advance before Chihuahua. They
do not appear to have been treated with severity or undue
harshness by the public authorities of Chihuahua or elsewhere.
Upon the occupation of tbat city by the forces of the United
States under Colonel Doniphan they were allowed to return,
having been absent about six months.
"Among those thus removed were George East and Archi-
bald Stevenson, who have presented memorials claiming indem-
nity for the losses sustained by such removal. Bast was a
merchant doing business to a large amount. His affairs were
left in charge of two persons who had been in his employment
as clerks, and by whom most of the merchandise on hand was
sold ; and some portion of the debts due to East were collected.
By the terms of the treaty of l^M he was j)ermitted to rcnain
one year from the commencement of the war to arrange his
affairs and dispose of his effects. It does not appear that the
agents of Mr. East might not have bad that full term to dis-
jKJse of the merchandise if they had desired it; nor that tliey
were in any manner directed or controlled in respect to the
winding up of the business by Mexican authorities. If the
sales were forced, or made at reduced prices, as is alleged, by
which a loss from the estimated value of the merchandise was
sustained, that was a consequence for which Mexico was not
responsible. It was the duty of East to wind up bis affairs
within the year, and undoubtedly some loss must always be
3340 INTEENATIONAL ARBITRATIONS.
exx>ected to result from closing so extensive a concern. If it
was done with undae baste, that was the fault of the agents to
whom the business was entrusted. The board is of opinion
that the claim of East is valid, and allows the same accord-
ingly, for such damages as is proved to have been sustained
attributable to his compulsory removal, the amount to be
awarded subject to the future order of the board.
'' Stevenson was the keeper of a large hotel. In consequence
of his removal the hotel was closed, although Stevenson was
obliged to pay the rent, taxes, etc., for the period of his
absence. The furniture was much injured, and the liquors
and groceries left by Stevenson were much wasted and injured.
The board is of opinion that his claim is a valid one against
the Kei)ublic of Mexico and allows the same accordingly, the
amount to be awarded subject to the future order of the board.^
Expulsion caseSf opinion of Messrs. Evans, Smith, and Paine, oommis-
sioners nnder the act of Congress of March 3, 1849. Other cases, present-
ing the same rircumstanccs as those of East and Stevenson, and in which
awards were made in favor of the claimaints, were those of William 8.
Meservey, and George C. Wethered.
Franklin Chase, United States consul at
Cases of Chase, the Tauipico, wliose expulsion is referred to in the
ers, an - pp^(.g^|i„g opinion, was engaged in business at
that port and had on hand at the time of the
order of expulsion a large stock of goods. He elected to embark
on an American man of- war, instead of going into the interior,
and remained on board from June till November 1846, when, the
city having surrendered to the American forces, he returned
and resumed possession of his property, receiving it from his
wife, Ann Chase, who had remained in the city during his ab-
sence and retained possession of his goods and other effects.
The memorial before the board was presented by the husband
and wife jointly, but the board failed to find anything in the
facts which would justify a joint award in their favor. The
goods appeared, vsaid the commissioners, "to have been the
property of the husband, and the business was conducted by
him. He alone was expelled. * * * The board therefore
decides that the claim of P>anklin Chase is a valid claim against
the Jiepublic of Mexico."
Another one of the Tampico cases was that of George and
Peter Latter and Samuel Wnlley, merchants of Tampico, who
were also engaged as partners in the manufacture of brick^
EXPULSION. 3341
and in cntting dyewoods and farming, on the Panuco Biver,
about 18 miles from Tampico. On June 12, 1846, when the St.
Mary-s arrived at Tamx)ico, they obtained a special i)ermission
in writing from the military commandant of Tampico, General
Parrodi, "to remain at their brickyard, situate at the Garacol,
without having permission upon any motive whatever to leave
said place during the present state of war between the United
States and Mexico." In the following November, when Tam-
pico was occupied by the American forces, they returned to
tlie city, where they remained during the war. They claimed
indemnity to the amount of $147,514.91, They filed an item-
ized statement entitled "Inventory of property and effects be-
longing jointly to the firm of Walley & Laflers, with a correct
estimate of the losses sustained by said firm previously and
after the occupation of Tampico by the military forces of the
United States." The principal items were for the loss of dye-
woods, which, it was alleged, were cut and piled on the bank
of the river ready for exportation and were carried off by
freshets; for several boats which were sunk in theriver and lost
for the want of hands to navigate tbeni ; for corn destroyed while
growing, in consequence of fences being destroyed by Mexi-
cans, and for loss of profits by reason of the interruption of
their business for a period of two years. Besides, there were
charges for loss of debts, for the increased expense of keeping
ex)ws and other stock which were taken to Tampico in conse-
quence of the danger of loss by robbery on the farjn, and for
the increased personal expenses of the claimants. Referring to
these claims, the commissioners said :
" The board has already had occasion to refer to the exag-
gerated and unfounded claims of A merican citizens against the
Government of Mexico, based upon the twenty-sixth article of
the treaty of 5th April 1831. A construction has been given to
that article by several of the claimants before the board which
would make the (iovernnient of Mexico responsible for all the
losses which resulted from a state of war. * * * American
merchants residing in Mexico at the commencement of the war
were entitled under the treaty to remain six or twelve months,
according to the i)lace of their residence, only to enable them
*■ to arrange their business, dispose of their effects, or transport
them wheresoever they may please.' • ♦ • They had no
right to engage in any other business than merely the disposal
of their i)roperty which they had when the war commenced.
"American citizens who were not merchants, but who exer-
cised ' any other occupation or trade,' were entitled to * remain
in the uninterrupted enjoyment of their liberty and property
3342 INTERNATIONAL ARBITRATIONS.
SO long as they conduct themselves peaceably.' Those who
claimed the protection of the Government of Mexico under this
provisicm of the treaty were bound to observe a strict neutral-
ity in the contest. Any departure from a strict neutrality
would forfeit all right to protection and render them liable to
be treated as enemies. The claimants in this case, although
they were engaged to some extent in agricultural pursuits and
in the manufacture of brick, were merchants, and as such were
embraced in the first clause of the twenty-sixth article of the
treaty, and were liable to be expelled after the expiration of six
months from the commencement of the war. Their trade in
dyewoods was a part of their commercial business, as it appears
from the evidence that they carried on a large export trade in
that article from the i)ort of I ampico. * ♦ * The present
claim is held valid to the extent of the loss shown to be a
consequence of the expulsion from Tampico previous to the
expiration of the six months. For the losses subsequent to that
period they were entitled to no redress as against Mexico.
The fact that they were engaged in other business than their
mercantile operations did not exempt them from the liabilities
which attached to them as merchants.
"But if the claimants could have claimed the right to remain
in Mexico and prosecute their business after the expiration of
six months, the evidence before the board shows that at least
one of them took such a part in the contest between the United
States and Mexico as destroyed his neutral character and for-
feited any right which he might otherwise have claimed. A
letter from Colonel DeEussy, which the claimants have filed as
a part of their evidence, states that after he went to Tampico,
in February 1S17, George Latter conducted himself in a man-
ner highly honorable to an American. * Sacriticing every pros-
pect of favor from the people with whom his interests had
become engaged to the high principles of his own national
honor and tlie best interests of his country, Mr. Lafler volun-
teered willingly to acc'ompany the undersigned upon a danger-
ous expedition to the heart of the country here, upon which
occasion resulted the battle of Calaboose River, where an<l
when he conducted himself in a manner highly honorable to
his individual gallantry, and by other important services ren-
dered,' etc. The board does not quote this letter with a view
of imputing any censure to Mr. Latler for the course he saw
proper to ])ursue. On the contrary, every American must feel
gratified by the exhibition of that high sense of the demands
of patriotism which prompted him to u[)liold the flag of his
country in a foreign land at the sacritice of his personal inter-
ests. They can not, however, considei* that Mexico was under
obligations to extend protection to his person or property after
he had thus assumed a position of active hostility.
"For the losses which the claimants sustained after the ex-
piration of six months from the commencement of the war, no
responsibility can be charged to the Mexican iiepublic."
EXPULSION. 3343
Claims for expulsion from Matamoras were
J ^^^* ■ allowed by the commissioners in favor of Sim-
der, BtoYeni, And
BtmmaiL ®®^ Remer, Dan forth Kidder, Charles Still-
man, and Henry Stevens. In the case of
Stevens, the commissioners said :
"The only doubt which has existed in relation to the present
claim is, whether the claimant is a citizen of the United States.
In his memorial he avers that he was born in Denmark, but
tliat he is a naturalized citizen of the United States. He dqes
not produce the letters of naturalization, but shows that he
was always regarded and treated as a citizen of the United
States while at Matamoras, and as such received the letters
of security granted by the Mexican Government upon appli-
cation of the consul of the United States at that port for sev-
eral preceding years. He was regarded by the Mexican
authorities also as a citizen of the United States, and as such
was expelled. Under the circumstances of this case, although
the proof of citizenship is not that which is required by the
rules of the board, it is inclined to consider this evidence sat-
isfactory, and allows the claim accordingly."
Among the Americans expelled from Vera
Mnrphy'i Case. Cruz in May 1846 was William Murphy. In
regard to his claim the commissioners said:
"At first we entertained some doubt whether the claimant
had not forfeited his right under this provision of the treaty
by taking part with the United States against Mexico in the
war which was raging. It appears that Murphy had been for
some time prior to the commencement of hostilities a con-
tractor to supply the United States home squadron, when
visiting Vera Cruz, with water and fresh provisions — a legiti-
mate and proper business in time of peace but illegal in time
of war. It further appears by certificates from naval officers
that during the war he was the constant friend of the United
States and rendered great service at much i)eril in obtaining
provisions and supplies for the tieet from the shore. But upon
careful scrutiny it does not appear that any service was ren-
dered under the contract after the commencement of the war,
or that any supplies were furnished or attempted to be fur-
nished to the United States vessels until after his expulsion
from Vera Cruz, from which time he was released from all obli-
gation to observe a neutral position. He was not ordered away
for any such cause, but was comprehended in a general order
requiring all citizens of tlie United States to depart within
the period of eight days. If he had been guilty or suspected
to be guilty of aiding the enemies of Mexico ^flagrante hello^^
it is probable a much severer punishment would have awaited
him. • • * In the opinion of the board, the claim set forth
i
3344 INTERNATIONAL ARBITRATIONS.
in the memorial of William Murphy is valid against the
Bepablic of Mexico, and the same is ac(!ordingly allowed."
A claim for expulsion from Vera Cruz was also allowed by
the commissioners in the case of Louis L. Hargous.
'' The memorialist was a merchant residing
Wright'i Case, in the interior and entitled to remain there
during the term specified in the treaty — one
year. The act of Congress recognizing the war between the
two countries was approved and became a law on the 13th of
May 1840. After the expiration of one year from that date
the obligation imposed upon Mexico by the treaty in reference
to American merchants residing within her territories was at
an end, and her rights under the laws of nations were then
without restriction. The order presented by the memorialist
as the foundation of his claim was issued after the expiration
of a year from the commencement of the war, and was the exer-
cise of a right which the laws of nations clearly recognized.
In the opinion of the board the memorial does not set forth a
valid claim against Mexico under the treaty of 2nd February
1848, and it is therefore rejected."
C<ise of Atkins S. Wright: Opinion of Messrs. Evans, Smith, and Paine,
commissiouers, under t^c act of (.'ongress of March 3, 1849.
" On the Ist of June 1847 an order was pub-
Bum'i Caie. lished by the Mexican Government requiring
all citizens of tlie United States in the City of
Mexico to leave the city and retire to the State of Jalisco or the
State of Morelia. Under this order the claimant was compelled
to leave the city, and did not return until after the American
army had entered it. The claimant, not being a merchant, by
the terms of the twenty-sixth article of the treaty of 1831 was
entitled to remain in the uninterrupted enjoyment of his liberty
and property so long as he conducted himself peaceably and
committed no olfence .against the laws. It is not shown by the
evidence that anything was done by him which could justly
forfeit the protection to which he was entitled under the treaty.
The board is therefore of opinion that he is entitled to some in-
demnity for the losses sustained by reason of his expulsion."
Case of Benjamin Burn: Opinion of Messrs. Evans, Smith, and Paine,
ronimissioners under the act of Congress of March 'Ay 1849.
EXPULSION. 3345
^'The memorial of this claimant was rejected
Togno^f Case, by the board 3d February 1851 on the ground
that he was embraced in the term 'Merchants'
used in the twenty-sixth article of the treaty of 1831, and there-
fore not entitled to remain in the country and prosecute his
bnsiuess after the expiration of one year after the commence-
ment of the war. Some depositions have been since liled
which, taken in connection with the testimony filed With the
memorial, prove that he was ' a tailor by trade, engaged in
cutting and making clothes for customers, that he kept an
assortment of cloths to make up for his customers and called
himself a merchant tailor.' From this discription of his busi-
ness the board is of opinion that he was not a merchant within
the meaning of the treaty, and was therefore entitled to remain
in the City of Mexico in the prosecution of his business so long
as he committed no act which would operate as a forfeiture of
the right secured to him by the treaty. The order of the board
rejecting his memorial is therefore rescinded, and the same is
received. And upon an examination of the proofs, together
with the memorial, the board is of opinion and decides that
the claim is valid and the same is allowed accordingly.''
C<w« of John Jf. Toyno: Opinion of Messrs. Kvans, Smith, and Paine,
commissioners under the act of Congress of March 3, 1H49.
" It is alleged in the memorial under con-
naooiiig'i Case, sideration that Theodore Ducoing, a native
citizen of the United States, and two others,
citizens of France, were copartners and doing a large and
profitable business in the City of Mexico when the war broke
out between the United States and Mexico, and that on the
Ist of June 1847 an order or decree was made by the supreme
government of Mexico that all citizens of the United States
should, within twenty-four hours, leave the capital for the
interior. It is set forth that the memorialist, by virtue of
this order, was compelled on the 2d day of June 1847 to relin-
quish his extensive and profitable business in the City of
Mexico, and that he set out for Morlia, but in lousequence of
sickness stopped at Tolucca and was there permitted to remain.
It is further alleged that the memorialist was not allowed to
return to the City of Mexico until the month of September
following, and that in consequence of his absence his busi-
ness suffered greatly, etc. * * « The memorial sets forth
3346 INTERNATIONAL ARBITRATIONS.
that the order of the Ist of June 1847 was in contravention
of the fourteenth article of the treaty of 1831, between the
United States and Mexico. This is clearly erroneous, for the
treaty only protected the party for twelve months after the
occurrence of war between the two nations, and more than a
year had elapsed from the commencement of the war to the
issuing of the order of the Ist June 1847. The argument,
however, puts the claimant's right under the law of nations.
In this it is alleged that on the 5th of January 1847 the
Mexican Government granted to the claimant a ^ carta «de
seguridad,' or letter of security, and that in the month of Feb-
ruary following the Mexican Congress, by a very decided vote,
negatived a motion to expel all citizens of the United States
from the country'. In consequence of these acts of the govern-
ment it is contended that Ducoing was lulled into security by
Mexico and the latter had not, tlierefore, any right to compel
him to remove from his place of residence until sufficient
notice was given to enable him to leave without detriment to
his business. * * * The vote of the Mexican Congress to
which reference is made in the argument was only in con-
formity with the obligations binding on Mexico under the
treaty of 1831; and this board can not believe that it was
intended as a lure to deceive citizens of the United States. So
also with the letter of security issued to the claimant on the
r>th of January 1847, four months before his rights under the
treaty would expire. This board can not believe that Mexico
intended by granting such letters of security to do anything
more than fulfil her treaty obligations ; that is, to allow Ducoing
to remain in the City of Mexico until the expiration of one year
from the commencement of war. This is the more obvious
from the fact that even in times of peace the laws of Mexico
required every foreigner to take out a letter of security and
to renew it annually. * * * He could not enjoy his right
of residence under the treaty without providing himself with a
letter of security. • * • The army of the United States
was approaching the capital of Mexico. More than twelve
months had elapsed after the war broke out, and the memorial-
ist does not set forth that he could not at the expiration of
twelve months have embarked from the country voluntarily.
Having remained beyond the i)eriod allowed him, he can not
i'.omplain that Mexico at such a period of imminent peril to
her capital would not allow him to remain in a situation where
EXPULSION. 3347
he would be able to commnnicate with her enemy. It is also
to be observed that the letter of security, upon which the right
of the memorialist is founded, is a mere right to reside and
travel in Mexico, and does not contemplate any continuation
of business. * • • The board is therefore of opinion that
the memorial considered in connection with the argument does
not set forth a valid claim against Mexico, and the same is
accordingly rejected."
Opinion of Meters. Evans, Smith, and Paine, commissioners, February
28, 1851; nnder the act of Congress of March 3, 1849.
William H. Lee, a citizen of the United
Le^sCase. States residing in Matamoras, Mexico, where
he carried on the business of a retail grocer,
was, in consequence of the Mexican decree of September 23,
1843, prohibiting foreigners to carry on the retail trade, com-
pelled to close his business and sell his stock at a sacrifice.
A claim for the loss thus occasioned was presented to Messrs.
Evans, Smith, and Paine, commissioners under the act of
Congress of March 3, 1849, who said:
"The strong ground of resistance to this decree taken by
the United States minister at Mexico, under instructions Yrom
the Department of State, precludes this board from an exami-
nation of the justice of this decree. It was holden by the Gov-
ernment of the United States to be ^plainly and palpably^ in
violation of the treaty of 1831 between the United States and
Mexico, and its repeal demanded so far as it might affect the
rights of citizens of the United States. (See instructions from
Mr. Calhoun to Mr. Shannon, of June 20, 1844. S. Doc. 2d
sess. 28 Cong.) The board therefore considers itself in this
case restricted to the inquiry into the proof adduced in sup-
poTt of the claim, only as it may attect the fact of injury and
the extent thereof."
"Lacoste further claims damages for his
Mexican Commifl- arrest, imprisonment, harsh and cruel treat-
V^^ "* ^ ment, and expulsion from the country. The
charge of imprisonment and cruel treatment
and of having been condemned to death is not supported by
any proof whatever. With regard to the expulsion of the
claimant from the country, it must be remembered that, owing
to the French invasion, the President of Mexico was invested
with great and extraordinary powers; and although ^ich
powers ought not generally to be exercised for the expulsion
of foreigners without good cause shown, the case is diflereut
6627— VOL. 4 8
3348 INTERNATIONAL ARBITRATIONS.
where the foreigner is a countryman by birth of the invaders
and conceals, as the claimant appears to have done, the fact
that he had adopted the United States as his country. The
expulsion does not, however, appear to have been accompanied
by harsh treatment, and at his request the claimant was
allowed an extension of the term fixed for his leaving the
country."
Thornton, niiipire, J. B, Lacoste v. Mexico^ Nos. 222 and 717, convention
of July 4, 1868, MS. Op. VII. 402. The claim was dismissed. So, also, were
the claims against Mexico of Charles P. Stone, No. 48; R, E. K, Whiting ,
No. 455, and Ella J, Whiting^ No. 483, for expulsion from Sonora, the umpire
holding that the United States had condoned it. (MS. Op. VII. 345, 483.)
In the case of J. X, Zerman v. Mexico, No. 613 (MS. Op. V. 319, VI. 369)
Sir Edward Thornton awarded the claimant $1,000 on ac(!Ount of his
expulsion from Mexico, saying: ''The umpire is of opinion that, strictly
speaking, the President of the Republic of Mexico had the right to expel
a foreigner from its territory who might he considered dangerous, and
that during war or dirtturbauces it may be ueoesHary to exercise this right
oven upon bare suspicion; but in the ])resent instance there was no war,
and reasons of safety could not be put forward as a ground for the expul-
sion of the claimant without charges preferred against him or trial ; but
if the Mexican Government had grounds for such expulsion it was at least
under the obligation of proving charges before this commission. Its
mere assertion, however, or that of the United States consul in a dispatch
to his government, that the claimant was employed by the imperialist
authorities does not appear to the umpire to be sufficient proof that he
was so employed or sufficient ground for his expulsion.''
^' It is claimed that in April 1864 Don Manuel
"^Demj^'Tciir''''' ^'^^^^^ ^® ^^*'^"' *^'® husband of the claimant,
was turned out of Brownsville, which was
then held by the United States forces under General Her-
rou, nnd was forcibly conveyed 'to Matamoras, where, on
the following day, he was shot by order of General Cortina.
The claimant demands compensation from the United States
Gov^ernment on account of the action taken by General Herron
which was followed by the execution of Senor Rijon, On the
part of the defense it is stated that Kijon, during his residence
at Monterey, had persecuted United States citizens who favored
the cause of the Union, and that he sympathized with the Con-
federates. Whether this was true or not, the right which
General Herron cLiimed of turning anyone out of his lines
when he thought proper to do so was the undoubted right of
any officer in the position held by General Herron. It must
be remembered that his position was a difficult one; that at
the time the United States forces occupied but a very small
EXPULSION. 3349
portion of Texas, and it was very natural that he should not be
disposed to keep within his lines persons whom he might have
considered disaffected or dangerous. An officer in command
in such a position is not always bound in time of war to give
his precise reasons for such steps. It was considered neces-
sary that Seiior Kijon should be removed from within General
Herron's lines. He could be sent only either into Mexican
territory or within the Confederate line. The latter it is not
likely that General Herron would have consented to, even if
he had been asked. It was indeed much more natural to
transport a Mexican to the nearest point of Mexican territory,
which was Mataraoras and was close by. General Herron had
apparently no reason to supi)ose that in sending Senor Bijon
to Matamoras he was exposing him to the risk of losing his
life. There is no evidence that Senor Kijon or his friends made
any representations to General Herron, or to the officers who
accompanied Rijon across the river, to the effect that there
would be danger to his life by his going to Matamoras. That
he was accompanied by three officers was natural in order
tliat his leaving the lines might be insured, and possibly also
for the purpose of protecting him from, insults in Brownsville,
where his supposed sympathy with the Confederates did not
make him popular. If there be truth in the statement found
in the so-called memorial, that ^the hostile attitude observed
by Don Santiago Vidaurri, then governor of the State of Leon,
against President Juarez, on bis approach to Monterey, was
displeasing to the Licenciado Kijon,- and that in order not to
be implicated in these matters he ^resigned his office and re-
tired from Monterey,' then it could not have been supposed by
General Herron or by anyone that Kijon would have been ex-
posed to any danger by going to Matamoras. However de-
plorable the result was, there is no evidence to prove that it
could have been foreseen by General Herron, nor can he or
the Government of the United States be held responsible
for it.'^
ThomtoD, umpire, July 13, 1876, Dana Mercedes Pinon de Bijon v. Me, loo,
No. 567, convcDtion of July 4, 1868, MS. Op. VI. 343.
" The cases of James D. Foster v. Mexico^
and Gibbe.
CtMt of the Forters, ^^ ^gg. ^ j^ ^.^^^ ^ Mcvico, No. 7t>l, and
William S. Foster v. Mexico^ No. 81(>, are
so precisely alike that they may be properly treated together.
The commissioner of the United States has Lkeued them
r
3350 INTERNATIONAL ABBITRATI0N8.
to the cases of James A. Costa v. MexicOy No. 560, and Alfired
F. Marshall v. Mexico j No. 650, bat tbe umpire is of opinion
tbat there is a material difierence between them. There
was no proof in the two latter cases that the claimants be-
longed to what was considered a military colony under the
protection of the imperial government of Maximilian, and the
umpire therefore awarded compensation for the arrest, bad
treatment, and final expulsion of those two claimants. The
three claimants whose cases are now under consideration cer-
tainly were members of a colony of that nature, which was
established in the estate of Omealca and other neighboring
estates by the imperial government with a view to the protec-
tion of that part of the country and to preventing the forces
of the ^lexican Government from advancing in that direction.
That General Figuera was justified in breaking up that colony
the umpire can not doubt. The Americans who composed it
were certainly under the protection of the imperial govern-
ment, who had bestowed upon them lands which, as it appears,
belonged to Mexican citizens from whom they had been con-
fiscated. The umpire believes that their removal from that
I>oint was ftdly justifiable; and by the strict rules of war their
property found in the enemy's country, even when belonging
to neutrals, which the claimants do not seem entirely to have
been, was liable to seizure.''
thornton, umpire, April 1, 1876, conyention of July 4, 1868, MS. Op.
VI. 410.
On January 3, 1870, the claimant, who was
Spanish CommiMion: then discharging the functions of acting con-
FhiUip'sCaie. sal of the United States at Santiago de
Cuba, pending tbe assumption by the duly
appointed consul of the duties of the office, wrote a dispatch
to the Secretary of State of the United States, in which he
made grave charges against the Cuban volunteers and their
officers. Among other things he said:
<^The assassination at Bayamo of the citizens sent from this
city by order of Count Valmaseda, which fact I have already
communicated to the department, was nothing more than what
is daily perpetrated. It is well known that Valasmeda aspires
to the position of captain-general of the island, and in order
to increase his popularity among tbe blood-craving Catalans,
who are operating in iiis behalf, both in this island and in
Spain, gives imperative orders to make this a war of extermina-
tion, and we daily learn of peaceful citizens residing in the
EXPULSION. 3351
coantry assassinated by the mobilized Spanish troops. These
orders are probably carried to an extreme, from the fact that
those commanding such troops are constantly supplying some
Catalan produce dealers of this city, and whose object is to
sack the coantry and forward to their agents such portions of
the crop as may fall into their hands."
The dispatch was communicated by the President to the
House of Bepresentatives, together with other papers accom-
panying his message of February 21, 1870.^ It was published
in the New York Herald of February 23, and on the 8th of the
following month it appeared in Spanish in a journal at San-
tiago de Cuba. There were upward of 2,000 volunteers in
that city, and a hundred or more of them, excited by the pub-
lication of the claimant's dispatch, assembled about his house,
threatening to kill him and waving their swords. To pacify
them the claimant signed a retraction of his charges, which
was presented by two officers of the volunteers, who, it seems,
were deputed at a meeting of officers on the same day to go
to the claimant's house and ask for explanations. Owing to
the excitement prevailing, some of the claimant's friends ad-
vised him to leave the island by a steamer then in port. The
claimant appealed to the governor of the city for protection.
The governor said that while be could guarantiee official pro-
tection, as a friend he advised the claimant to leave the country
immediately. The claimant asked for a passport and an escort
to attend him to the steamer. The governor refused the escort,
saying that the claimant did not need it, though he subse-
quently sent his secretary to accompany him to the steamer.
He declined to give the clafmaut a passport till he had turned
the consulate over to the duly appointed consul, who had for
several days been in the city, but who, on account of illness,
had not assumed the discharge of liis official functions. The
consul, in order, as he said, to save the claimant's life, took
charge of the consulate, and the claimant left the country on
the afternoon of the same day.
The advocate for the United States contended that it was
the duty of the authorities to extend ample protection to the
claimant, especially as he was acting in a consular capacity,
and referred to the acition of the United States in 1832, in in-
demnifying the Spanish consul and other subjects of Spain
residing at New Orleans for losses occasioned by a mob in
1861. (10 Stats, at L. 89.)
»H. Ex. Doc. 11)0, 1 1st CoIlJ,^ 2 Bess. p. 187.
3352 INTERNATIONAL ARBITRATIONS.
The advocate for Spain maintained that tbe claimant's treat-
raent was the result of his denunciation of the volunteers, and
that the Spanish Government was not responsible for his de-
])arture from the island under the circumstances disclosed.
He also laid stress on the fact that the United States had not
demanded any reparation from Spain for any injury to the
claimant as a consular officer of the United States.
The arbitrators dift'ering in opinion on the case, it was sub-
mitted to the umpire, who on December 20, 1881, advised the
advocates for the United States and Spain that he had deter-
mined that the claimant would not have been entitled to
indemnity if he had been a private citizen; and he requested
their opinion on the question whether he had jurisdiction to
decide whether a United States consul had forfeited the pro-
te(!tion of his official position. The advocate for Spain
answered in the affirmative. The advocate for the United
States answered as follows:
<*I am of opinion that the umpire has no jurisdiction to de-
cide whether a consul of the United States has forfeited the
protection of his official position. The United States make no
claim here A)r indemnity for national injury in the person of
Mr. Phillips. They demand compensation for injuries inflicted
upon him personally, and in an individual capacity.''
The umpire rendered the following decision:
'^It appears that Dr. Phillips was not expelled by the Span-
ish Government, but that he was obliged to depart because he
had, by bitter denunciations against the volunteers, excited
their hatred to such a degree that an attempt to kill him was
apprehended.
*'The advocate for the United States says:
"'Dr. Phillips was an American citizen, who from a high
sense of duty to his own countrymen felt constrained to per-
form temporarily the duties of a consular office and to give his
own government a true and faithful account of what was trans-
piring around him. He was not actuated by any personal, or
mercenary, or unworthy motive of any kind in making his re-
I>orts, nor did he suppose that he was guilty of any offense or
imprudence in sending his report to his own government. Me
was in no way chargeable with or responsible for the publica
tion of his reports.'
''The umpire is of opinion that he has no jurisdiction to enter
into any question concerning the rights of the claimant as a
United States consular officer. The question to be decided is,
whether the claimant received the protection due to him as a
private American citizen, and with regard to this quCvStion the
EXPULSION. 3353
umpire is of opinion that, under the circ^umstances in this case,
Spain would not have incurred any liability even if he had
been expelled.
^^ Therefore the umpire hereby decides that this claim be
dismissed."
Count Leweuhanpty umpire, caae of Augustus C, PhillipSf No. 67, Span.
Com. (1871), February 27, 1882.
" On the night of the 24th February 1871
Caiaziova's Case, the claimant, who had just landed in Cuba,
was arrested and directed to go on board the
steamer plying between Cuba and New York, which he did the
same night. The evidence tends to show that the Spanish
authorities subsequently changed their purpose of excluding
the claimant from the Island of Cuba, and that his actual
departure was more due to his fears than their commands. A
late writer has said, ^A nation has the right to forbid entrance
into its territory of particular foreigners for political motives
or motives having reference to the laws. The sufficiency of
these motives is a (|uestion for the state, which alone can exer-
cise its sovereignty in its own territory.' (Bluntschli, 382.)
"In our opinion, Spain had, under the circumstances, the
right to forbid the entrance of Mr. Casanova into the Island of
Cuba, and his arrest was only such as was necessary to that
end.''
Opinion of the Marquis de Potestud, arbitrator for Spain, concurred in
by Mr. Lowndes, arbitrator for the United States, case of Ynocencio Casa-
nova, No. 25, Span. Com. (1871), December 26, 1882.
A claimant, a citizen of the United States,
Lynn's Case. married in Cuba a Spanish subject. Tliis lady
was arrested on a charge of complicity with
an in8urre<*tion, and on April 8, 1870, she was tried and ac-
quitted, and was permitted to return to her husband. His
house, however, was placed under surveilhince, and it was
alleged that threats were made against him by Spanish volun-
teers, and that warnings were given him by his friends. On
the 3d of May 1870 lie suddenly and secretly left the island.
When his departure became known, his creditors instituted
proceedings against him, in the course of which he was de-
clared insolvent and his property was sold. In these proceed-
ings he was represented by a duly authorized attorney. It
was contended, on behalf of tlie claimant, that ^' the Spanish
3354 INTERNATIONAL ARBITRATIONS.
authorities, having by their conduct created saspicions and an
unfavorable impression in the minds of the community in
regard to him, neglected to interi>ose in his behalf and afford
him the protection to which he was entitled, but, on the con-
trary, compelled him. to abandon bis property and to seek
safety in flight.''
The umpire, Count Lewenhaupt, held that ^^ the claimant had
not sufficient reason to consider himself obliged to leave Cuba
on account of any act of omission or commission of the Spanish
authorities," and that he was not entitled to any indemnity on
account of his claim.
Case of William S. Lynn, No. 104, Span. Com. (1871), April 18, 1881.
A claim was made for damages alleged to
San Pedro's Case, have been Suffered in consequence of an unlaw-
ful expulsion from the Island of Cuba. It
appears that the claimant was arrested on a charge of
being implicated in an insurrection, and the expulsion com-
plained of consisted in an option given him to stand his trial
on that charge or to leave the island. He accepted the latter
alternative, but some days before his departure the order for
his expulsion was revoked. Of this fact he was duly informed.
Subsequently, however, in the month following that in which
the order of expulsion was revoked, he sold his property and
returned to the United States.
On these facts it was held that the alleged enforced sale of
his property could not be (considered as having been necessi-
tated by the order of expulsion, or by any act of omission or
commission of the Spanish authorities, and that if he left on
account of bad feeling toward him on the part of the inhab-
itants of the place in which he lived, this circumstance was
not sufficient to entitle him to indemnity.
Count Lewenbanpt, umpire, cane of Juan San Pedroy No. 117, Span.
Com. (1871), April 18, 1881.
Early in 1854 John E. Gowen and Franklin
*** c i^T ^ Copeland, citizens of the United States, dis-
covered a deposit of guano on the group of
rocks known as Los Monges (the Monks), in the Caribbean
Sea, near the month of the Gulf of Maracaibo. When the
discovery of the guano was made the rocks were "uninhabited
and uninhabitable, there being no vegetation and no water,
nor were there any visible vsigns to indicate that they had
ever been occupied by any human beings." Specimens of
EXPULSION. 3355
the gaano sent to the TTnited States haying proved, on analy-
sis, to be exceptionally rich, Messrs. Gowen and Oopeland
made extoDsive preparations for removing it, and sent men,
machinery, and materials, instrncting their agents to take pos-
session of the rocks, in the name of the United States, for the
nse and benefit of themselves. This was done in December
1854, and from that time on Gowen & Copeland worked the
deposit till they were stopped in the manner now to be related.
In Jane 1855 the Venezuelan authorities notified the occu-
pants of the islands that they must vacate them. They refused,
or omitted to do so, but were not then disturbed. In the fol-
lowing September, however, some persons from Philadelphia,
in the United States, who afterward formed an association
called the Philadelphia Guano Company, having heard of the
existence of the guano deposit, obtained a lease of the islands
from the Venezuelan Government. It seems that Gowen &
Copeland entered into negotiations with this company for a
sublease, but failed to reach an agreement as to terms. In
this x)osture of affairs a Venezuelan man of- war, about the 1st
of December 1855, appeared at the islands, put a file of soldiers
on shore, seized the machinery, buildings, and materials of
Gowen & Copeland, and expelled their manager and his men
under threats of imprisonment. Janniiry 10, 1856, Gowen &
Copeland entered into a contract with the Philadelphia Guano
Company by which it was agreed that they should be per-
mitted on certain terms to continue to work the deposit for a
period of fifteen months. Gowen & Copeland claimed dam-
ages from Venezuela. This claim appears to have been based
on the temporary seizure of their property and the expulsion of
their men. It was not shown that the Venezuelan Govern-
ment either appropriated any of their property or made any
use of it between the date of its seizure and the renewal of
work under the sublease.
Mr. Findlay, commissioner, speaking for the
Opimon 0 . - (jQinmisgiQ,!^ gaid that the question arose " at
the very beginning of the case" as to the
right of Venezuela to make the seizure; and that the com-
mission, " without going minutely into the question of bound-
aries, the law of headlands, and of derelict property," was
disposed to place its decision ''upon the simple proposition
that the claimants, in taking possession of a barren rock,
or group of rocks, in the hi<j;h seas, unoccupied and unin-
habited, and as far as the proof shows never occupied, for
3356 INTERNATIONAL ARBITRATIONS.
the temporary purpose of removiDg a valuable deposit, which
they were the first to discover, can not be treated as tres-
passers, subject to be removed by the strong hand, and to
be despoiled of their possessions without redress." Whether
" New Grenada or Venezuela had the better claim to sover-
eignty," or '*to which territorial garment the fringe composed
of these island rocks " might be said to adhere, was a ques-
tion *'much too serious and far reaching in its consequences "
for the commission with its limited resources to determine.
Besides, it was understood that the question of title was
involved in an arbitration pending between Colombia and
Venezuela. Continuing, Mr. Findlay said:
"The only question in the present case which we will dis-
pose of is whether a wrong was done in dispossessing and
despoiling the chiimants in the peculiar circumstances nnder
which they made their discovery, it is not claimed that ^hey
discovered the islands, the names of which disclose a Spanish
origin, and which, in fact, had been marked down on maps
centuries before, but their claim is that they for the first
time set a human foot on their rocky sides with a view to re-
ducing into possession a substance the existence of which
was a secret to the rest of the world and the value of wliich
had only been 'recently demonstrated. These islands were
nineteen or twenty miles out at sea from the nearest coast,
a gap whi(;h might almost suggesi that the fringe did not
belong to any government, but was waste territory of its own,
not subject to any jurisdiction. The argument was made that
they were in the track of commerce, and from a military i)oint
of view, either otlensively or defensively, might be made
strongholds for friend or foe; but admitting this, the force of
which, however, was very nuich weakened on a closer exam-
ination of the precise location of the islands, the question that
we are dealing with is not one of sovereignty or of ultimate
ownership, but of temporary occupancy for a special, limited
purpose, peaceable in its origin and purely commercial in its
character. It is true thar an attempt was made to take pos-
session in the name of the United States, but this was a nuga-
tory act and without significance or conseciuence. The United
States never claimed jurisdiction and made no protest when
its fiag was hauled down under the orders of the captain of
the Venezuelan man-of-war. The islands were occupied for
the purpose of obtaining guano, and would have been aban-
doned as soon as this object had been accomplished.
*' There was no Hag fiying to indicate that they were claimed
by any other power. If the islands had been in the middle of
the Pacific Ocean, without trees, grass, or water, and nothing
but a group of barren rocks, with only a name and a place on
the navigation charts, there could be but little question that
EXPULSION. 3357
their occupatioD would not constitute a trespass. If this is
true of islands a thousand or two thousand miles from shore,
the only reason that it is not trueof similar formations twenty
miles out must arise from the opportunities which spring from
such proximity to the mainland. We are speaking now of an
occupation merely, as distinguished from an actual appropria-
tion with a view to sovereignty, and in the absence of excep-
tional circumstances we can see no reason for distinguishing
between the occupation of the Monks Islands and a similar
unoccupied group in the mid-Pacific. It follows from this that
the claimants are entitled to be reimbursed for what they lost
by the act of Venezuela in dispossessing them. What was
this lossf Clearly not the guano deposit on the islands The
islands were not theirs, and the guano was a part of the free-
hold, as much so as gold or coal, or any other valuable deposit.
*' The claimants were of the opinion that the islands belonged
to New Granada, and had succeeded partially in obtaining a
lease from that government when further negotiations were
broken off by the unfortunate occurrences at Panama. This
shows conclusively that, notwithstanding the hoisting of the
United States flag and the claim of territory, the claimants
did not consider that they had established title to the islands.
The Philadelphia parties, on the other hand, were disposed to
render homage to Venezuela as the titular lord of these pos-
sessions, and, as the result proved, were wiser than the Boston
parties. But neither supposed that the mere fact of taking
possession would vest an iibsolnte title, good against the world.
The guano will have to follow the ownersliip of the islands,
and as to this, the claimants not only show no title in them-
selves, but admit and recognize a title in another party. The
fact is they recognized the title of Venezuela, because they sub-
leased the deposits from her lessees. It is said they were com-
pelled to do so or lose the profit of their investment. That
may be true, but their position now as parties to an interna-
tional reclamation would have been much stronger if, instead
of recognizing the validity of the lease to the Philadelphia
company and selling out to them in effect, they had stubbornly
stood on their rights and demanded indemnity for the wrong
done them.
"They were to pay an export duty of five dollars and an
additional sum of like amount as a royalty for the privilege of
taking the guano for fifteen months, and at che end of this
period, in consideration of tliis fianchise, were to transfer the
plant and * all materials used,' as the contract reads, to the
Philadelphia company. They were not com])elled to make this
bargain, and yet it is diflicult to see what other arrangement
could have been made without a total sacrifice of the plant as
long as Venezuela held it for the purpose of aiding the les-
sees in consummating the agreement made with her. TliQ
testimony as to the value of tliis ])lant is very loose and unsa
isfactory. We do not know of what it consisted and have
i
3358 INTERNATIONAL ARBITRATIONS.
precise statement as to items and original cost. It was nsed
a year before it was seized, and we can not tell, therefore, how
much it deteriorated or what the value of the renewals, if
any, was, or anything about it, except in the opinion of sev-
eral of the witnesses it was worth $20,000. It was worked
under the protection of the Philadelphia contract for a year
or more at least. That is the iuference we draw from the pro-
visions of the contract before cited.
<< It is true that there is a conflict of testimony as to the
actual date when the islands were taken possession of by the
Venezuelan authorities. According to some of the witnesses
this took place in July 1855, but Mr. Gowen himself says that
it was on the 1st of December following. If this is to be
accepted as the date, it would seem that the plant, machinery,
etc., were in the possession of these authorities at the time
the Philadelphia contra&ct was consummated, and it is reason-
able to infer were surrendered shortly afterward to the owners
to be worked in accordance with the provisions of that con-
tract. The papers in the case are silent upon this point, and
we are left altogether to inference. The seizure, in our opinion,
was unjustifiable, and the subsequent detention, for whatever
length of time, contributed to the injury. Under these cir-
cumstances, and in view of the fact that the transfer of the
plant to the Philadelphia comi)any was in the nature of a
forced sale, which under the circumstances was a substantial
appropriation of the property, we are not inclined to hold the
claimants to the strictest proof of its value.
" We will allow on this account the sum of $20,000.
" The claim for false freights can not be allowed. According
to Mr. Gowen's own deposition, the vessels on whose account
this claim was made were chartered long after he received
notice from the consul of Venezuela at Philadelphia that the
Monks Islands belonged to Venezuela and that she would pre-
vent anyone trespassing upon her possessions. This notice
had such an effect upon him that he ordered the schooner
Adrian, then at the port of Baltimore, and about to discharge
a valuable cargo, to sail for Liverpool and discharge her cargo
there, although the Liverpool market was not a good one for
this commodity, and in point of fact the sale at that port
resulted in a loss of several thousands of dollars to the claim-
ants. This, it seems, happened not only in the case of the
Adrian, but of several other vessels chartered by the claim-
ants, all of which, for fear of condemnation on proceedings to
be taken in this country, were ordered to some foreign port.
If, notwithstanding this notice, the claimants undertook to
charter vessels which were forced to return empty, we can not
see that they have just cause for complaint.
"If Venezuela had, in the first instance, warned them against
landing upon the islands under a claim of jurisdiction, and
they bad, notwithstanding the warning, proceeded to land and
to erect their plant and take out guano, we hardly think tiiat
EXPULSION. 3359
this element of their claim which we have already allowed
woold have been entitled to favorable consideration. The act
of the United States of the 18th of Aa^st 1856, providing for
the acquisition of islands of this kind by its citizens, makes
the fact of the nonexercise of jurisdiction by any other i>ower
one of the conditions of acquisition. Notice, then, by Vene-
zuela that she claimed jurisdiction, followed up by the requisite
proceedings to enforce the claim, would have put the claimants
in the wrong had they attem])ted to take possession of the
islands, notwithstanding this claim. It is just, because there
was no claim made by anyone to vacant sterile rocks, lying
far out to sea, and by their very situation and appearance sug-
gesting that they were no man's laud, that we think the
claimants have an equity to be reimbursed for their outlay in
taking possession of what was apparently derelict and aban-
doned property. But the same line of reasoning must neces-
sarily exclude the claim for false freights.
^< On the whole, we think justice will be done by allowing
$20,000, gold coin of the United States of America. We make
no allowance for interest, owing to the imperfection and ob-
scurity of the proof with reference to the value of the planf
John E. Gawen and Franklin Copeland v. VenezueUif No. 16, United States
and Venezuela Clauus Commission, convention of December 6, 1385.
CHAPTER LXI.
REVENUE GASES.
The secoud article of the treaty of com-
Importatioa of Cot- m^rce of July 3, 1815, between the United
tolu: ^'w^^ ^- states and Great Britain, provides that *' no
der Law and Treaty.
higher or other duties shall be imi)osed on the
importation into the United States of any articles the growth,
produce, or manufacture of His Britannick Majesty's territo-
ries in Europe, * ♦ ♦ than are or shall be payable on
the like articles being the growth, i>roduce, or manufacture of
any other foreign country.'^ By the tariff act of August 30,
1842, the duties on cotton goods imported into the United
States were nearly doubled; but it was provided that the act
should not apply to goods shipped in vessels, bound to any
port of the United States, which actually left their last port of
lading '* eastward of the Gape of Good 11 ope, or beyond Gape
Horn, prior to the 1st of September 1842.''
Between August 1842, and May 13, 1843, Messrs. Godfrey,
Pattison & Go., merchants of (ilasgow, imported at New York
and BovSton a quantity of cotton goods, on which duties were
paid under the act of August 30, 1842. Tiiese duties were,
however, paid under protest on the ground tliat as shipments
made from Liverpool and other Britisli ports were, by the treaty
of 1815, entitled to be imported into the United States on the
payment of "no higher or other duties'- than were exacted on
articles the growth, produce, or manufacjture of any other for
eign country, the cottons in question were entitled to be im-
l)orted under the old law until May 13, 1S42, up to whi(!li time
it was alleged that vessels with cottons continued U) arrive
from ports eastward of the Gai)e of (lood Hope.
Claims against the United States for the refund of the
alleged excess of duties, to<jether with interest, were submitted
to the commission under the convention between the United
33G1
3362 INTERNATIONAL ARHITRATIONS.
States and Great Britain of February 8, 1853. It was argaed
before the commission that an ^* importation" of goods should
be considered as covering the whole period of transit, com-
mencing with the time of leaving the foreign country. This
argument the commission refused to admit, holding that goods
could not be said to be imported until the transit was complete
and the goods had actually aiTi\red at their destination. On
the other hand, the commissioners said:
"We are of opinion that as long as. goods were received
fi-om the East Indies at the reduced rate of duty prescribed
in the prior statute, they were entitled to be received from
Great Britain charged at the same rate of duty. This is the
only interpretation which it seems to us conforms to the just
intent of tlie treaty.
"A construction, at least as favorable as that adopted by
us, was given to this clause of the treaty by the British Gov-
ernment oil a claim in behalf of American citizens for repay-
ment of the duty charged on rough rice. That claim was for
a long time under consideration, and was settled by directing
the excess of duties exacted to be repaid, as long as African
rough rice had been allowed by law to be imported into Eng-
land at a lower duty than was charged on American rice.
"The commissioners are of opinion that the precedent estab-
lished in that case was based on sound principle, and they
direct that the excess of duties exacted on cotton goods
imported by the claimants prior to May 13, 1843, shall be
refunded.
"A question of payment of interest has also been raised. It
appears that at the time the duties were demanded the claimants
formally protested to the collectors of New York and Boston
against the rate of duty assessed, as contrary to treaty stipu-
lations. They also claimed protection from 31 r. Fox, lier
Majesty's minister at Washington. The United States Gov-
ernment was, therefore, from the first, informed that the pay-
ment of the duty would be resisted.
"The act itself, also, of the 30th of Aufjust 1842 should
have placed them on their guard, as it expressly provides 'that
nothing contained in it shall be construed or permitted to
operate so as to interfere with subsisting treaties with foreign
countries.'
"Under these circumstances, we are of opinion interest
should be allowed on the claim from the time of payment."
ITpham, commisaioiier, delivcriug Ibo opinion of the eommisHioD, con-
vention botwoen the United States and (Ireat l^ritaiu of February 8, 1853.
(S. Ex. Doc. 103, 34 Cong. 1 sess. 304.)
The same provision of the treaty of 1815 as was involved in
the preceding case was invoked by claimants in another class
of cases. By the act of Congress of May 22, 1824, in relation
REVENUE CASES. 3363
to duties on imports, an increase of 5 cents a square yard on
cottons was made to take effect from June 30, 1824, with the
proviso ^Hhat it should not apply to or be enforced against
importations of goods irom ports or places eastward of the
Cape of Good Hope or beyond Cape Horn, before the 1st of
January next ensuing/'
•
The commissioners said:
" The violation of the provisions of the convention of 1815 by
that act is much more explicit and direct than that of the act
of 1842 with regard to which we have already expressed our
opinion. The act then provided merely that all goods which
were shipped from i)orts beyond the Cape of Good Hope prior
to the net taking effect should not be subject to the operation of
the statute. In this case it is provided that the act itself
should not take effect on goods coming from beyond the cape
for the term of six months after it had been in operation as to
goods imported from other countries.
^'The commissioners regard this as a clear and palpable dis-
crimination in favor of those countries in violation of the
treaty of 1815, and allow claims for the return of any excess
of duties beyond those paid by those countries during the
period within which the exception operated.
"On the question of interest which has been presented to
our consideration, it appears that the duties were originally
paid without complaint, and that the claim has been permit-
ted to slumber, until very recently, without being brought to
the notice of the United States; and we are of opinion that no
interest should be allowed.''
Upham, commiBsioner, caBes as to duties on cotton goods, commiBsion
nndcr convention between the United States and Great Britain of Febru-
ary 8, 1S53. (S. Ex. Doc. 103, 31 Cong. 1 sess. 312.)
The two preceding decisions relate to the
Ssportatioiiof Wool- importation of goods, as affected by the second
on: Question nn- ^^.^.^j^ ^^ ^^^ ^^ ^g^ .^ ^ ^^^ ^ ^^.
dor Law and *' ^
jy^^^ cle it is also provided that no "higher or other
duties" shall be imposed on the " exportation of
any articles" from the one country to the territory of the other
" than such as are payable on the exportation of the like arti-
cles to any other foreign country." The first case that attra<^ted
attention, as an alleged violation of this stipulation, was the
assessment by Great Britain from the date of the treaty down
to May 6, 1830, of an ad valorem duty of 10 per cent on manu-
factured woolens when they were exported to the United
States and certain other countries, while during a large part
of the time they were exported free of duty to China, Java,
5027— VOL. 4 U
3364 INTERNATIONAL ABBITBATIONS.
Manila, Lima, Valparaiso, (Jalifornia, etc. On December 27,
1825*, some American sbips, wliicli bad been taking in cargo for
some of the latter phvces, finding that woolens, of which their
cargoes principally consisted, were allowed to be shipped free
of duty, applied to the board of customs for permission to ship
woolens to the United States with the same exemption. This
application the board refused. On the 20th of January 1826,
however, it was ordered that woolens might be shipped to the
United States- on deposit of the duties, pending the decision of
the British Government.
About this time exception was taken by British merchants
to the inequality of the export duties on goods exported to Kio
de la Plata and (Colombia, with which Great Britain had trea-
ties containing clauses similar to that now in question. The
exception of the British merchants was based on these clauses,
and it was allowed, the Treasury in April and May 1826 or-
dering the excess of duties to be refunded. No decision, how-
ever, was made on the American claim, and the attention of
the privy council of trade was again called to the subject. On
the 20th of August 182(> the committee of the council issued
an order on the American memorials, declaring ^Hhat, as the
duty in question was not i)ayable upon woolens exported to
foreign places within the limits of the East India Company's
charter, the parties were entitled, under the terms of the treaty
with the United States, to a like exemption," and requesting
the commissioners of His Majesty's customs "to discontinue
levying that duty on woolens exported to the United States
and to other countries with wliich treaties containing a similar
right of exemption had been concluded;" and it was directed
that " on due application from the parties by whom such ex-
port duties had been paid, the same should be returned to
them."
Notwithstanding this order, the board of customs refused to
refund the duties, and procured an act of limitation, which
was passed after the memorials of the American claimants
were filed, to the eft'ect that duties thus assessed should not
be refunded for a period extending back more than three
years. Xo step was taken, however, to pay any of the claims
until December 3, 1845, when, jifter representations on the
subject by the United States, an order was issued under
which the duties were refunded back to »January 26, 1823, at
wliicli time the practice began of paying the duties under pro-
REVENUE CASES. 3365
test, or conditionally. The claiuis for the refund of duties
collected from January 3, 1815, to January 2G, 1823, remained
unadjusted, and were referred to the commission under the
convention between the United States and Great Britain of
February 8, 1853.
The commissioners said that the treaty of 1815 seemed to have
been violated iiiMSome instances through iuiidvertence, by careless
and ha«ty legislation, and in others seemingly through igno-
i*ance of its provisions. But it was conceded that, as a matter
of fact, the inequality of duties complained of in the present
case violated the provisions of the treaty; and it was decided
that the duties should be refunded. The commissioners, how-
ever, did not render any awards in these cases in favor of par-
ticular claimants. Owing to the practice of the British
shippers in entering in their own names and in gross, for pay-
ment of duty, the goods shipped by a particular vessel, evi-
dence of the precise amounts of duty paid by the American
im])orters could not be obtained from the customhouse rec-
ords; and owing to the lapse of time and the changes in firms
by death or otherwise, it was dijfficult to obtain satisfactory
evidence of any kind in many cases. To obviate this diffi-
culty, the agent of the claimants entered into an arrangement
with the British Government by which the shippers' accounts,
the claimants agreeing to waive interest on them, were ac-
cepted as a basis of settlement, and time was allowed for mak-
ing the requisite apportionment among the several importers.
This arrangement having been eftected, tlie commission al-
lowed the claims to be withdrawn.
Commission under the convention betwo«Mi the United States and Great
Britain of February H, 1853. (S. Ex. Doc. 103, M Con^'. 1 sess. 305-310.)
By the United States customs act of March
Drawback of Duties ^ ^.^^ ^ drawback of duties was allowed on
on Coal. ^ ^
articles entered for exportation, the owner giv-
ing bond not to reland them within the limits of the United
States. By the same act the ordinary evidence of exportation
was the duly verified certifictite of the consignee of the land-
ing of the articles in a foreign country; but in case of loss at
sea, or other unavoidable accident, or where from "the nature
of the trade" such proof could not be*, produced, the exporter
was allowed to furnish such other proofs as he might possess
and as the nature of the case would admit of.
3366 INTERNATIONAL ARBITRATIONS.
Tbe Great Western Steamship Company, a British organi-
zation for the purpose of supi)lying its steamers with fuel on
their outward voyages from the United States, shipped a
quantity of coal to IN^ew York, paid the duties on it, and stored
it in warehouses, giving bond for its exportation as under the
act of 1799; and it subsequently claimed a drawback on such
part of this coal as was eousuuied by its steamers, on the
ground that it was exported in the sense of the act. The cus-
toms authorities denied that such consumption was an expor-
tation, and Congress refused to take any action in the matter
until, by tlie civil and diplomatic appropriation act of March
3, 1853, the Secretary of the Treasury was authorized "to
cancel any outstanding debenture bonds given prior to July
1, 1850, upon the importation of foreign coals, provided the
said coals have been exported to a foreign port, or consumed
upon the outward voyage, and shall not have been consumed
in the United States." The Secretary of the Treasury, how-
ever, held that this act merely ])rovided for the cancellation of
the bonds, without authorizing the refunding of the duties.
The company took the oi)posite view, and the questicm came
before the commission under the convention between the
United States and Great Britain of February 8, 1853.
Upham, American commissioner, delivered the opinion of the
commission, which was as follows:
" In this case no evidence has been or can be given of the
landing of the coal in any other port or place without the limits
of the United States, and there is no loss at sea or other una-
voidable accident complained of. There is nothing, therefore,
to exempt the claimants from the ordinary evidence of expor-
tation, unless the case can be brought within the exception,
that *the nature of the trade' is such that the usual proof re-
quired can not be obtiiined.
**This renders it necessary to inquire to what class of trade
this expression refers. It undoubtedly refers to the trade or
commerce then carried on with various uncivilized sections of
the globe — such as the northwest coast of Africa, the East
India islands, and other places where the evidence of consuls
and merchants could not be obtained. It is a forced construc-
tion to contend that by the act of 1 799 consumption of coal on
an outward voyage is included in the term ^exportation' within
the meaning of the act.
"The coal was imported /or use by the Great Western Steam-
ship Company on board their vessels on their outward voyage,
and should be subject to a charge for such use as much as if
. cx)nsiimed on shore. A drawback on goods exported is granted
^. .ou the ground that they are in transit for a market^ but where
REVENUE CASES. 3367
they have once found a market so as to be appropriated to use,
and are not further placed in traimtu, an an article of commerce^
the ordinary duty claimed on the article rightfully attaches,
whether it be consumed at sea or on land.
<< I do not regard the claimants, therefore, as entitled to a
drawback by the act of 1799.
"It becomes, then, necessary to inquire into the eifect of
the recent act of March 3, 1863, to determine whether a draw-
back is allowed by that act. In the opinion of Secretary
Guthrie, it authorize3 merely the canceling of the bonds given,
and does not provide for a restoration of tlie duties in the form
of debenture or otherwise.
"There are reasons, however, that might hold him to a rigid
construction of the act that do not necessarily operate upon us.
The act of April 1853 does not expressly provide that a draw-
back shall be paid. An administrative officer might insist on
some sx>ecific authority in the act, or some judicial construc-
tion of it to this ettect, before assuming the responsibility of
the payment of money.
" The act, however, admits of the construction contended
for by the claimants, and its passage was undoubtedly obtained
through their agency, with a view to effect the purpose now
claimed for it. The repeated attempts at prior legislation for
this end might well affix on Congress the knowledge of such
an intent by the clause presented, and imply their acquiescence
in it.
" The different constructions also put at diff'erent periods on
the prior act relative to drawbacks is a reason why the officers
of the government and claimants should both wish some final
legislation. I am inclined, therefore, to give it the interpreta-
tion placed on it by the claimants. The act, by any other
construction, would be almost nominal in its character, and can
hardly be supposed to have been made the object of special
legislation, under tlie circumstances, for such a purpose.
" I therefore allow the sum ot* eleven thousand four hundred
and thirty-seven dollars and twenty-five cents for the draw-
back on duties claimed by the company prior to 184G. There
is, in my mind, no legal right to drawback until the act of
1853 was passed, and a claim to interest ought not to go behind
that date.
" My colleague places the ground of allowance of the claim
on a different construction of the acts in question, and com-
putes interest from the payment of the duty. The question of
interest was submitted to the umpire, and was allowed from
July 1, 1850."
Case of the Great Western Steamship Company, mixed commission under
the convention between the United States and (ireat Britain of February
8, 1853. (S. Ex. Doc. 103, 34 Cong. 1 sess. 328-333.)
The umpire allowed interest at the rate of 5 per cent from June 15, 1850,
to January 15, 1855, amounting to $2,500, making the totid award $13,500,
on January 15, 1855. (MSS. Dept. of State.)
3368 INTERNATIONAL ARBITRATIONS.
In 1830 the collector of customs at New
'^f Cuito ^*"^** Vork seized a large quantity of goods on com-
plaint that for some years previously the im-
porters, who were resident merchants having partners or
houses connected with them in Yorkshire, England, had de-
frauded the revenue of large sums of money. Many of the
goods so seized were sold at public auction. Some of the im-
porters were arrested, and one or more of them fled the coun-
try. Some of the cases were prosecuted to judgment or were
settled by the parties, and some were not sustained on the
trial or were dismissed, owing, tis it was alleged, to the diffi-
culty in obtaining evidence from abroad. Complaints having
been made of the manner in which the suits were conducted,
the subject was investigated by a committee of the United
States Senate, and a report was submitted by the chairman of
the committee, in which some of the proceedings were severely
criticised, but no definite action on the report was taken. In
some of the cases, involving in all between $200,000 and
$3(M),000, the importers made claims against the United States,
which came before the commission under the convention be-
tween the l-nited States and Great Britain of February 8,
185;^. In all the cases so submitted the suits were either pros-
ecuted to judgment or else were adjusted between the parties.
Attempts were made to show that these adjustments were ob-
tained by the j^overnment by duress, but the charge was not
sustained. The commission held that the claimants had no
standing before it, saying:
'*In some of these eases large sums were paid to obtain an
adjustment, and it seems to have been overlooked that, unless
such adjustment is explained, it tends at least as much to show
an acknowledgment of fraud or mistake on the part of the
importer as it is evidence of duress on the part of the officers
ol the government.
"The suits should have been prosecuted to final judgment
if a valid defense existed. The parties were resident in the
United States, and were availing themselves of the protection
of the government in the transaction of their business, and
they should not have adjusted claims then ])ending against
them in courts of competent jurisdiction, and come liere after
a lapse of some fourteen years expecting their reconsideration.
"It was not designed that this (•ommission should take cog-
nizance of such cases. The respective governments had already
I)rovided by treaty for the settlement of all transacticms arising
out of the ordinary business of commerce by i)ersons domiciled
in the government of the other.
REVENUE CASES. 3369
"The convention of »Tuly 3, 1815, to regulate commerce be-
tween the territories of the United States and of Great Britain
provides in article first *that the inhabitants of the two coun-
tries, respectively, shall have liberty to remain and reside in
any part of the territories of the other where other foreigners
are permitted to come; also to hire and occupy houses and
warehouses for the purposes of their commerce, and, generally,
that the merchants of each nation, respectively, shall enjoy
the most complete protection and security for their commerce,
but subject always to the laws and statutes of the two countries^
respectively.'^ (U. S. Stats, at L. vol. 8, p. 228.)
"It was manifestly contemplated in this provision that citi-
zens or subjects of either government resident in the country
of the other engaged in commerce should be subject to the laws
of the country where they reside in all ordinary matters per-
taining to such commerce. The adjudication of suits arising
out of the collection of the revenue is certainly a matter of
local jurisdiction by the courts of the country, and there can
be no appeal from them to this tribunal.
"We have been able to see no ground in any of this class of
cases which have been presented to us that entitles them to
recovery under this commission."
Upham, conniiissioner, delivering tbo opinion of the commission, con-
vention between the United States and Great Britain of February 8, 1853.
(8. Ex. Doc. 103, 31 Cong. 1 sess. pp. 334-338.)
The schooner Fair American^ of which
Caie of the **Fair Thomas Wilson, a citizen of the United States,
1 !?^f t!'*^' ^ ^' was sole owner, and Peter Parker, master, on
December 3, 182.), cleared from Baltimore,
Maryland, and on January 4, 1<S2(), arrived at Refugio, Mexico,
where she was entered and i>ermitted to land her cargo, which
was consigned to a flrni at that port. On the llth of January,
while the consignees were en<;age(l in removing the cargo to the
nearest custom-house for insi)ection and assessment of duties,
the goods were seized for couliscation on the ground that the
vessel had no certific^ate or note from the Mexican vice-consul
at Baltimore evincive of the honesty and fairness of her inten-
tions in relation to the revenues of Mexico, It seems that the
Mexican vice-consul at Baltimore had been consulted as to what
papers were necessary, but had not si)ecified such a pax^er as
that which was reciuired. Mr. Wilson, however, on hearing of
the seizure of the cargo, ])rocured a certificate from the vice-
consul and sent it olf, with a statement as to his previous action
in a vessel specially employed tor the purpose, to Refugi
an expense of >< 1,300. But in s]>ite of the evidence furnisl
the goods were condemned and sold and the proceeds di
k
3370 INTERNATIONAL ARBITRATIONS.
between the Government of Mexico and the ollicers of the reve-
nue. Mr. Wilson made a claim for damages.
The Mexican commissioners stated that there existed in
Mexico at the time of the seizare and confiscation of the cargo
a law subjecting to confiscation the cargoes of all vessels clear-
ing from any port in the United States at which there was a
Mexican vice-consul without having obtained from such vice-
consul a verification of the manifest of the cargo, and in addi-
tion thereto a consular certificate or note corresi)onding with
the manifest in the specification of the cargo. The American
commissioners replied that no authenticated copy of the law
had been produced; that if it had been there was no evidence
that it was made public at Baltimore on or before the day on
which the Fair American cleared, and that if Mexico could
enact a law of the import alleged it could not be obligatory
upon the citizens of another state until it had been published
in that state such a length of time that all upon whom it was
to operate would be presumed to have had notice of it. The
Mexican commissioners referred to the record, which purjwrted
to contain provisional regulations for the government of Mex-
ican vice-consuls, a copy of which was promulgated at Eefugio
on January 11, 1825.
On March 10, 1841, the umpire delivered the following "pre-
paratory j udgment : "
"The claim of Thomas Wilson can not yet receive the defin-
itive judgmeiit of the undersigned. The decree of the 25th
March 1826, ordering the confiscation of the cargo of the
schooner Fair American, is founded on article 14 of the sov-
ereign decree of September 4, 1823, on articles 9 and 12 of
chapter 1 of the tariff of maritime duties, as well aB on arti-
cle 3 of the provisional regulations of the Mexican consuls.
To better comprehend the decree of confiscation, it will be
desirable to learn the contents of the decree of September 4,
1823, as well as the cited chapter of the tariff*. The American
commissioners can not acknowledge the authenticity of the
provisional regulations of the Mexican consuls, unless it shall
be established by the production of a copy of said regulation
exemplified under the great seal of the Kepublic of Mexico. 1 1
is necessary, then, that the regulation shonld be proved in the
manner indicated by the American commissioners, as more
than the copies submitted are necessary.
"The American commissioners have objected that article 3
of the provisional regulations, ordering, under the penalty of
confiscation, the production of consular certificates, includes
not only the government of consuls, but also a penal provision
which should emanate from the legislative power. To refute
REVENUE CASES. 3371
that objectiou • tlie Mexican commissioDers contend, in an
extract annexed to their report s'ubmitted to tlie umpire, that
the Mexican constitution authorizes the executive power to
make such rales, decrees, and ordinances for the better execu-
tion of the constitution, of constitutional acts, and the general
laws, and that consequently the provision of article 3 of said
regulations has the force of law. It is necessary that the
American commissioners should understand what tbe Mexican
commissioners have to say on that point, and it is also neces-
sary to produce the Mexican constitution as well as the gen-
eral laws for the better execution of which the said provisional
regulation was made."
The American commissioners, reviewing the various meas-
ures mentioned in the ^' preparatory judgment" of the umpire,
said that the fourteenth article of the sovereign decree of
September 4, 1823, was to the effect that all officers against
whom an omission should be proved facilitating smuggling, or
obstructing the seizure of smuggled goods, should be tried in
conformity with the provisions of the second chapter of the
law of March 24, 1823, which laid down the mode of enforcing
the responsibility of public officers; that the ninth article of
the maritime tariff provided that whenever, in the export of
goods, silver, and other articles subject to duty, an excess
should be made to appear, such excess should be subject to
seizure; and that the purport of the twelfth article was that
when a captain of revenue guards, by himself or his subordi-
nates, should, in visiting a vessel, find gold, silver, or other
articles subject to duty, shipped without leave from the custom-
house, he should unship them and deposit them in the ware-
houses, in order that a suit for such penalty as might be proper
should be instituted; The American commissioners could see
nothing in these articles to sustain or even to palliate the
seizure and confiscation of the cargo of the Fair American^
and they contended that the provisional regulations for the
control of consular officers were beyond the power of the exec-
utive of Mexico under the constitution of that country, and
were therefore invalid.
April 23, 1841, the umpire made the following decision:
"The, umpire recognizes the justice of the demand for an
indemnity for tlie confiscation of the cargo of the schooner
Fair American^ but he is not yet ready to pronounce on the
question of the amount of the indemnity, that question not
having as yet been discussed by the mixed commission."
The American commissioners then submitted an argument
on the subject of the amount of the indemnity to be awarded.
3372 INTERNATIONAL ARBITRATIONS.
They allowed (1) for the coiiliscation of tbe cargo the sum of
$46,805.71, with iuterest at C per cent from 31arcli 7, 1820 ; (2)
for notarial and cognate expenses, $117.80, and (3) for various
other expenses, including those involved in the prosecution of
the claim, certain other sums.
The umpire, June 2, 1841, awarded (1) for the confiscation of
tbe cargo the sum of $2r>,240.05, with interest at 5 per cent
from Mireh 7, 1826, to the time of payment, and (2) for notarial
and cognate expenses, the sum allowed by the American com-
missioners. As to tbe third item allowed by tbe American
commissioners, he reserved bis decision, and furtber arguments
on the subject were submitted by the commissioners. On July
10, 1841, the umpire rendered the following decision:
"Tbe mixed commission having submitted anew to tbe
umpire the decision relative to certain expenses reserved in
his decision of tbe 2d of June, tbe American commissioners
have allowed for expenses incurred in the ])rosecution of tbe
claim, as well as for tbe transportation of tbe merchandise to
tbe custom-house, and for tbe detention of tbe ship by the
Mexican authorities, tbe following sums: $1,517, with interest
at 5 per cent from February 27, 1827; $1,684. "jO, with interest
at 6 per cent from tbe same date; $128, with interest at 6 per
cent from tbe same date; and 825.18, without interest. Not-
withstanding that tbe Mexican commissioners bave rejects
these demands, tbe umpire decides tbat tbe Mexican Govern-
ment is bound to pay the claimant for tbe said expenses the
sum of $2,185.68, witbont interest, except as to tbe sum of
$348, on wbich sum tbe umpire allows interest at 5 per cent
from March 7, 1826, to tbe day of payment. Tbe umpire
rejects tbe demand so far as it exceeds the above.''
Thomas ll'ihon v. Mexico: Commission iiiuler the conveiitioii between
the United States and Mexico of April 11, IKM).
In January 1825 tbe American brig ExprenH
Case of the "Ex- • i 4- a i 1 ai • 1' at -n
„ arrived at Alvarado, jMexico, Irom Marseilles,
press. 777
France, witb a cargo of brandy, wbicb, wbile
being unloaded, was seized and libeled by tlie subcommis-
sioner of tbe custom bouse on tbe cbarge tliat it was Spanish.
Certificates of origin were exbibited, but tbey failed to satisfy
the authorities; and tbe ])urcbaser of tbe brandy tlirew up
the contract on tbe ground of tbe nondelivery of* tbe article.
Tlie district judge decided in favor of tbe (owners and directed
tbe delivery of the brandy, ])ut tbe autborities took an appeal
to tbe circuit court at Jalapji. In February 1820 tbis court
directed tbe examination of tbe brandy by samples, at Mexi(!0,
REVENUE CASES. 3373
Oaxaca, and other places, at all of which it was pronounced
to be French, and the decree of the district court was affirmed
in March 1826; but an appeal was taken by the subcommis-
sioner of customs at Alvarado to the supreme court of Mexico.
Finally he withdrew his appeal, and the proceeds of the
brandy, which had been sold by order of court, were ordered
to be paid over, less the duties on the brandy, to the original
owner. Part of the proceeds, however, was not found in the
public treasury, and the full amount of the remainder was not
returned.
Indemnity for the losses suffered by the owner of the brandy
in consequence of the transaction was awarded.
Reuben M. Whitney and Charles Callayhanj Assignees of John Colter ^ v.
Mexico: Commission under the convention between the United States and
Mexico of April 11, 1839.
The American commissioners awarded the
Karie*! Case. sum of $1,093.12^, with interest at 0 per cent
from August 30, 1824, as indemnity for the
confiscation pronounced by a court of justice of Alvarado,
Mexico, on a charge of violation of revenue laws, of fifty bar-
rels of beef and thirty sacks of coft'ee. The umpire, February
25, 1842, rejected the claim.
Leontine Marie v. Mexico: Commission under the convention between the
I'nited States and Mexico of April 11, 1839.
The Union Insurance Company of New
Case of tiie "Eobert y j^ demanded of the Mexican Government
Wilson."
the sum paid by the company to the proprie-
tors of the brig Robert WilffOHj in consequence of its seizure
and confiscation by the Mexican authorities. The American
commissioners contended (1 ) that the Mexican authorities had,
by their refusal to communicate to the official named by the
superior court of New York, a copy of certain proofs in the
process against the brig, deprived the company of the means
of showing that the confiscation had been pronounced because
the commerce in which she was engaged was i)rohibited, and
had thus brought about the condemnation of the company to
pay the insurance; and (2) that the confis(;ation of the vessel
was not justified. The Mexican commissioners, on the other
hand, contended (1) tliat the Mexican tribunals were not bound
to communicate evidence ex(?ept to parties to the i)leadin
before them; and (2) that the confiscation was pronounc
according to Mexican law.
3374 INTERNATIONAL ARBITRATIONS.
The umpire rejected the claim. The violation of the law of
Mexico was proved, though the master of the vessel disclaimed
knowledge of it. It appeared that certain boxes which were
entered on the manifest of the brig as containing tin plate,
in fact contained counterfeits of Mexican copper coin.
Commission under the convention between the United States and Mexico
of April 11, 1839.
William Massicott, master of the American
icasdoott^i Case, brig Aspa^a^ sailed from Baltimore to Gibral-
tar, and from the latter port to Vera Cruz,
having on board some specie for the payment of the crew and
other expenses. On arriving at Vera Cruz he paid duty on
a part of the specie ($1,500), and obtaining a permit for its
exportation, placed it in a chest with the other part, which
amounted to $1,528. After sailing from Vera Cruz he decided
to call for further cargo at Sisal. At the latter place the
authorities found the $1,528, and ordered its seizure. The
$1,500, as to which the master had a certificate of the custom-
house at Vera Cruz, the authorities released. The $1,528, as
to which he had no certificate, they confiscated. The umpire,
December 3, 1841, rejected the claim.
ComniiHsion under the convention between the United States and Mexico
of April 11, 1839.
An indemnity was claimed on account of
Gaseof Joseph Smith, the Seizure by the Mexican authorities at Sal-
tillo of a quantity of merchandise imported
by claimant in 1832. When the goods were seized they were
not properly protected, and were left exposed to depredations.
The judicial proceedings resulted in the dissipation of the
charge on which the seizure was made, and the goods were
ordered to be restored. I^ut a considerable portion of them
had been made away with, and it was for the value of this
lK)rtion, with a reasonable mercantile profit thereon, that an
award was made. The umpire, February 23, 1842, awarded
$18,762.63.
Joseph Smithy. Mexico: Commission under the convention between the
United State's and Mexii^o of April 11, 1839.
In 1837 the claimant, a merchant of Phila-
Caseof the *' Mary." delphia, sent the brig Mary from Havana to
Tampico, laden with merchandise. A part of
the cargo was seized and condemned as prohibited, but as to
this no claim was made.
REVENUE CASES. 3375
On March 29, 1837, the brig left Tampico for Tabasco with-
out any cargo, except a few hides and a small amount of
specie, together with thirteen passengers. On her way to
Tabasco she touched at Vera Cruz for provisions, and all her
passengers but one went ashore. She passed on to Tabasco
and arrived at that port on the 10th of April. The collector
of the port refused to permit her to enter and ordered lier
forthwith to proceed to sea, on the ground that the voyage
from Tampico to Tabasco was a coastwise trading voyage,
and as such prohibited by the revenue laws of Mexico. The
brig then sailed from Tampico to Campeachy, and after some
difficulty was admitted at the latter port. Alter her arrival,
judicial proceedings were instituted for the purpose of deter-
mining whether the voyage from Tampico to another port in
Mexico was in violation of the laws of that country. The
decision of the court was pronounced in favor of the legality of
the voyage and of the right of the vessel to enter at Tabasco,
where her object was to take on a load of logwood. It was
alleged that the refusal to permit her at once to center that
port defeated the object of the voyage and resulted in a loss
of $4,822, which was the first item of the claim in the case.
The brig was freighted with part of a cargo of logwood at
Campeachy, and then returned to Havana. On July 15, 1837,
under the command of the same master, she sailed again from
Havana to Tampico, where she arrived on the 24th of the same
month. The manifest and other documents were presented to
and received by the authorities, but when on the 21st of Au-
gust the brig was ready to depart, the authorities refused to
clear her on the ground that the manifest of the inward voy-
age had not been certified by the collector of customs at the
port of Havana in conformity with a Mexican customs regu-
lation of October 4, 1836. On this ground the vessel was
libeled for the recovery of a fine of $500, though it was alleged
that she had incurred the penalty of forfeiture. The penalty
of forfeiture, however, was not insisted upon, but a second fine
of $500 was exacted for the absence of a proi)er certification of
the manifest on the first voyage from Havana to Tami)ico.
For the payment of these two fines of $500 each the brig was
sold. A claim of damages was made by the owners for the
loss of the brig and for the loss of freight which she might
have earned if she hud not been seized.
The American commissioners argued (1) that the refusal of
the captain of the port of Tabasco to permit the Mary to enter
3376 INTERNATIONAL ARBITRATIONS.
was an illegal act, for wbicli the claimant was entitled to
the resulting damages; (2) that the regulation under which the
proceedings against the vessel were taken did not emanate
from the lawmaking power of Mexico, and that, being a mere
executive order, it was, so far as it assumed to impose penal-
ties, void; (3) that, as the Mexican Government had neglected
to place at Havana a consular officer to give the required cer-
tificates, the fault, if any, of not complying with the regulation
(assuming it to be legal) was attributable to that government;
(4) that the regulation of the 4th of October 1836 was void or
inoperative as to citizens of the United States, since it was
not consonant with the treaty stipulations then existing be-
tween the two governments; (5) that, even assuming that the
master was liable to the penalties exacted of him, the Mexican
authorities had no right to detain the vessel, and (6) that the
neglect to enforce the law on the first voyage or then to give
the captain notice of the law or of his having violated it in
effect released him from the i)enalty, if any, incurred on that
voyage, and constituted a defense against exacting the penalty
on the second voyage.
On the other hand, the Mexican commissioners argued
against any allowance on the ground (1) that when the brig on
March 12, 1837, first arrived at Tampico from Havana she had
on board certain contraband or prohibited articles, including
two boxes which were invoiced as cologne water, but which
were found to contiiin 20,000 cigars and a barrel of brandy;
(2) that when her cargo was landed the master asked to be
cleared for Havana, and on March 29 sailed in ballast for that
l>ort with thirteen passengers ; (3) that when the brig hjwl been at
sea tiye days she put into Vera Cruz without having a passport
for that x)lace on the pretext of taking in water; that the i)as-
sengers were made to land there, though bound to another
place, and that a bill of health was obtained for Havana; (4)
that instead of sailing for Havana the brig i)rocecded to
Tabasco, but being forbidden to enter there went to Cam-
peachy, where the master, the captain of the port opposing her
entry, obtained from the judge of the district, though the law
forbade it, permission to enter and load with logwood, notwith-
standing that three dozen hides, the product of the country,
were found on board without a permit; (5) that the brig did
not, either on her first or her second entry at Tanii>ico, comply
with the provisions of the regulations of October 4, 1836, and
REVENUE CASES. 3377
that a fine of $500 was properly exacted of the master for each
omission; (G) that the master refused to pay the fines, aban-
doned his vessel, and departed the country, leaving a written
protest before the consul of his nation, in which he estimated
the value of what he had abandoned at $15,000, without avail-
ing himself of the provisions of law in regard to the appraisal
of vessels.
The commissioners diifering in opinion as to the allowance of
the claim, the umpire on October 27, 1841, dismissed it.
William Richardson v. Mexico: Commission under the convention between
the United States and Mexico of April 11, 1839.
In an analysis of the awards of the commission made by Mr.
Brackenridge, one of the American commissioners, there is,
with reference to the foregoing case, the following note:
"Brig Mary. Seizure and sale of vessel for the payment of
pretended fines, amounting to $1,000, in the year 1836. Pro-
ceeds of tlie sale of the vessel above the amount retained by
Mexican authorities. This, together with some other items for
damages, etc., constitutes the claim. The award of the umpire
was affirmed by the board, but it was afterward suggested
that the balance of the claim, not having been expressly
referred to him, remained undecided; in consequence, it was
moved by the American commissioners to take the subject into
consideration, but overruled by their colleagues. It is there-
fore still a question whether this case has been finally decided.
The claimant contends that all the proceedings in the case are
void on account of irregularity, and that the whole claim
stands open the same as if there had been no action upon it by
the board or the umpire."
The claim for damages for the loss of the vessel and for loss
of unearned freight was laid before the commissioners, Messrs.
Evans, Smith, and Paine, under the act of March 3, 1849. The
commissioners dismissed it, on the ground that it had been dis-
allowed by the umpire under the convention of 1839, whose
decision was, by Article X. of that convention, final and con-
clusive.
Another claim, growing out of the sale of the vessel to pay
the tines, was, however, allowed by the commissioners under
the act of 1849. This claim they described as follows:
'* In the progress of the cause before the mixed commission
the Mexican commissioners, though totally denying the justice
of the claim then under consideration, admitted that the claim-
ant was entitled to the amount for which the brig was sold,
less the fines to i)ay whi(5h the court rendered the decree of
3378 INTERNATIONAL ARBITRATIONS.
sale, and that this sam without interest was all that the claim-
ant could properly demand. * ♦ * The board is of opinion
and decides (I) that the present claim was not embraced in
the claim decided by the mixed commission * ♦ *, and (2)
that it is a good and valid claim agaiust the Government of
Mexico."
In accordance with this opinion the commissioners awarded
the sum of $2,804.
James O'Flaherty, a citizen of the United
cnahertj*! Gaae. States, master and owner of the schooner Wil-
liam A. Turner, presented a claim tothe mixed
commission under the convention between the United States
and Mexico of 1839, growing out of certain proceedings against
the vessel at Sisal in 1834 and at Matamoras in 1836, and for
his own imprisonment and ill treatment in the latter year. The
commissioners differing in opinion, the claim was referred to
the umpire, who failed to decide the case, and it was afterward
laid before Messrs. Bvans, Smith, and Paine, commissioners
under the act of Congress of March 3, 1849.
Taking up, as first in order, the seizure of 1834, the commis-
sioners said that it was not easy from the proofs in the case to
arrive at a satisfactory result as to some of the facts necessary
to be established before the claim could be admitted; that the
validity of the claim depended in great degree, if not altogether,
upon whether the schooner was at the time of the seizure within
the territorial jurisdiction of Mexico and amenable to Mexican
laws. She had on board at the time a small (juantity of rice
and soap, both being prohibited articles, the importation of
which into Mexico, as the law then stood, subjected the vessel
imiK)rting them, as well as the articles themselves, to confisca-
tion. If, said the commissioners, the vessel with these articles
on board had actually entered the port of Sisal, not being
driven in by distress, she was undoubtedly amenable to the
laws of the country; but if, as alleged by claimant, she was
taken possession of on the high seas, outside the jurisdiction
of Mexico, and brought within it, she could not be held answer-
able for any violation of the revenue laws of that country.
The commissioners said it was understood that bv an ordinance
of Spain the territorial limits of Mexico, when a colony of
Spam, extended only to the distance of ten miles from the
shore, and this was believed to be considered as its present
extent. In this relation they referred to an opinion of the su-
preme court of Louisiana filed in the claim of J. II. CucuUu et
REVENUE CASES. 3379
al. The commissioners said that it was audoubtedly compe-
t^ent for Mexico, as well as for any other nation, to seize ves-
sels found hovering on its coasts with the evident design to
embrace an opportunity to enter its ports in violation of its
laws, but that the present seizure was not made in the exercise
of such right.
It was proved that the vessel sailed from New Orleans in
March 1834 with a general cargo of provisions, including
some rice and soap, for the bay of Honduras; that she went
to several ports in that bay, sold part of her cargo and landed
the residue, and made one voyage on freight from Truxillo
to Belize; that she then reshipped the portion of her cargo
which had been landed, including a small quantity of rice and
soap, and, taking two cases of cotton cloth, received in pay-
ment for articles sold, set sail on her return voyage, intending
to stop at certain Mexican ports, if it should be ascertained
that t^ose ports had, owing to the prevalence of the cholera
there, been entirely opened for all descriptions of merchan-
dise, as had been reported at Truxillo. If he should learn
otherwise, it was the intention of the master, as he declared,
to proceed to New Orleans. When about twelve days out, off
Sisal, and at a distance of more than four miles from land.
Captain O'Flaherty sent his boat ashore to obtain wood and
water, and not having hands enough to manage the vessel, came
to anchor with some of his sails flying. Before the return of
his boat he was boarded by a party of armed men from the
shore under the command of an oflicer called the commandant
of the revenue guard, who demanded his manifests, papers,
and other documents belonging to the vessel. In addition to
the general manifest the laws of Mexico required vessels en-
tering their ports to have three special manifests of cargo,
certified by the Mexican consul nearest the port whence the
vessel last sailed. Captain OTlaherty was not provided with
these documents; but, declaring that he was ignorant of the
laws of the country, and that he did not know that the Mex-
ican authorities could demand his papers at that distance from
the i)ort, he undertook to comply with their requirements.
Certain manifests were made out and delivered to the revenue
officer. These manifests contained the rice and soap, the i)ro-
hibited articles, but did not contain the two cases of cotton
cloth taken on board at Truxillo, which were not prohibited,
nor did they accurately state the quantity of flour on board.
Upon the discovery of these circumstances, the vessel was
6027— VOL. 4 10 ^-^
3380 INTERNATIONAL ARBITRATIONS.
seized and towed into port. The whole cargo was lauded by
order of the collector, and the case was brought before the
district court for the condemnation of the vessel, of the pro-
hibited surticles, and of the excess of flour not set down in the
manifests. On the trial certain Mexican witnesses testified that
the vessel had come to anchor in the usual place, within one
mile firom the mole, while the crew and the supercargo testified
that she was more than four miles from the mole, and that the
boat was sent ashore solely for wood and water. The district
court appointed the collector of the port of Campeachy to be
promoter fiscal, or legal adviser and prosecutor, to whom all
proofs were submitted ; and on June 10, 1834, he made a full
report to the judge, coming to the conclusion that the vessel
and cargo were not liable to confiscation for violation of the
revenue laws, and recommending that they be declared free
and be delivered up to the claimant. Thereupon the collector
of Sisal interposed an appeal to the circuit court. While these
proceedings were pending, Oaptain O'Flaherty gave bond for
$1,200, the appraised value of the schooner, and obtaining her
discharge, sailed away. On January 5, 1835, a decree was
pronounced by the circuit court reversing the decision of the
district judge, declaring the schooner confiscated, and impos-
ing a penalty upon the captain the nature and extent of which
did not clearly appear, but which was confirmed m March
1836 by the supreme court of Mexico. The bond of $1,200 was
paid immediately after the condemnation.
The commissioners said that, taking into consideration that
the voyage of the schooner was not originally projected to any
Mexican port, and consequently that the captain had no occa-
sion for triplicate manifests; that the larger part of the pro-
hibited articles was actually disi)08ed of in Honduras, and
that the master, when a demand was made upon him, actually
entered those articles on the manifests, they saw no sufficient
evidence of design on his part to violate any of the revenue
laws of Mexico, and as, notwithstanding very strong Mexican
testimony to the contrary, they were constrained to believe
that the vessel was not within Mexican jurisdiction nor amen-
able to Mexican laws at the time she was taken possession of
in the manner stated, they were of opinion that the claim for
the amount i)aid by claimant to release the vessel from the
illegal restraint imposed upon her was valid.
The commissioners also found that the claim of Captain
REVENUE CASES. 3381
O'Flaherty for his imprisoDment and the detention of his ves-
sel in 1836 was valid. It appeared that in July 1836 he cleared
from New Orleans for Matamoras, and on the 17th of the same
month arrived at the port of Brazos, where, obtaining the
necessary permit, he discharged his cargo on the 21st and 22d
of Jaly. On the 23d of July, however, the authorities of the
X)ort sent an armed baud on board, aud arrested the schooner
and imprisoned the master. The master was liberated on the
13th of August, and on the 22d of August the schoouer was
released on a bond of $1,200. Between the latter day and the
29th of the same month the vessel was freighted and cleared
at the custom-house, and was prepared for sea. On the morn-
ing of the 30th of August orders were given to stop the
schooner, and her master was again imprisoned. On the 2l8t
of October the vessel was again released, but the master was
detained for some time longer. It appeared that his first
arrest was made on information sent by the authorities (1)
that he had abstracted and run away with his vessel in 1834,
before the termination of the judicial proceedings; (2) that he
had incurred a fine pronounced by the supreme court of Mexico;
(3) that he had by a decree of the same court been banished
from the country, and could not lawfully enter it again. Besides
these grounds, derived from the authorities at Sisal, it was
alleged (4) that Captain O'Flaherty had been guilty of gross
misconduct at Brazos. The commissioners said that the first
ground of complaint was wholly unsupported, since it was en-
tirely proper for Captain O'Flaherty to take his vessel, after he
had given a bond for her appraised value, which was ultimately
paid. As to the second ground, it was shown that he had paid
the fine demanded; besides, most of the indignities were sub-
sequent to the payment. As to the allegation that he had been
interdicted from entering the country, the commissioners said
it did not appear that by the laws of Mexico the court had
I)Ower to pronounce such a penalty, and there was no evidence
that it had done so. The whole i)roceediug against him ap-
peared to be illegal, and he was finally released without having
been brought to trial or charged before any tribunal with any
ofi'ense — which was strong evidence that he had not committed
any infraction of the laws. But as to his alleged misconduct
at Brazos, the commissioners considered it wholly probable;
the Mexican authorities complained to the American cons
that he had committed faults of great magnitude in that por
3382 INTERNATIONAL ARBITRATIONS.
namely, that not beiu^ discliarged on the day he wished he had
loaded two caDuou which he had on board with grapeshot, bring-
ing one to bear on the barracks and the other on a Mexican
schooner; that he ordered these cannon to be tired, but that it
was not done because the crew were opposed to it. The com-
missioners said that so far as these proceedings on Oaptaiu
O'Flaherty's part may have aggravated the personal injuries
of which he complained, he must be content to bear the conse-
quences, but that for the acts of the Mexican authorities in the
seizure and detention of the vessel and tlie original imprison-
ment of Captain O'Flaherty, being for the most part illegal,
and being authorized and directed by persons for whose pro-
ceedings the Government of Mexico was responsible, an indem-
nity should be allowed!. They therefore awarded on the whole
claim, including the detention of the vessel in 1834 and 183() and
the imprisonment of Captain OTlaherty, the sum of $8,221.25.^
The ship Henry Thompson^ an American ves-
Case of the "Henry j ^^.j^^ ^^^^ Gibraltar December 8, 1833,
Thompson.' ' '
with a cargo a part of which was destined for
Vera Cruz, Mexico, and a part for New Orleans, in the United
States. The goods destined for those ports, respectively, were
entered upon the manifest and the i>lace of destination of each
article was properly specified. On the arrival of the vessel at
Vera Cruz the master delivered to the collector of the port a
copy of his manifest, and received i>ermission to unload that
portion of his cargo which was consigned to that port. Shortly
after that portion was landed a party of men, under the au-
thority of the collector, went on board the ship and forcibly
took possession of the residue of the cargo, carried it on shore,
and deposited it in the public stores, and proceedings were
> When the schooner was seized at Matamoras, on August 3(), 1836, there
were among the articles of merchandise on board 182 bales of wool, the
property of Horace Sonthmayd. While the vessel was in mstody the
anthorities stored this wool in a warehouse, where it was burned. A claim
for its loss was presented to the mixed commission under the convention
of 1839. The American commissioners awarded for the wool $3,79r).(>0, the
sum which it would have brought at the time of \t» prol)able arrival at
New York, the port of destination, less freight and charges, together with
$375 expenses incurred in protecting the wool at Matnmoras after its seiz-
ure. On these two sums they allowed interest at? per cent from April 1,
1837, till March 1, 1841, the date of the final award, together with $1(».19
for costs of translating and preparing jiapers — making in all $5^479.22.
The umpire reduced the rate of interest to 6 per cent and awarded $5,353.79.
REVENUE CASES. 3383
institated by the collector before the district judge with a view
to its confiscatioD. The ground alleged for these proceedings
was that a law of Mexico which prohibited foreign vessels
from carrying goods to two or more ports had been violated
by the shipment of the cargo to Vera Cruz and New Orleans.
The district judge decided that the law in question was in-
tended only to prohibit the coasting trade of Mexico to foreign
vessels, and that the Henry Thompson did not come within its
provisions. He refused, however, to order the redelivery of
the goods to the master without payment of duties, which he
held to be obligatory under instructions from the Vice-Presi-
dent of the republic. The master refused to pay the duties,
and after entering his protest before the United States consul,
abandoned the goods and sailed for Kew Orleans. A claim
for indemnity was presented to the mixed commission under
the convention between the United States and Mexico of April
11, 1839, but, being left undecided, was afterward submitted
to the commissioners under the act of Congress of March 3,
1849. The commissioners said :
" The right of the claimant in this case to indemnity must
be determined by the decision of the question. Were these
goods subject to the payment of duties under the Mexican tar-
iff! The right of the Mexican Government to enact a law
requiring foreign vessels voluntarily coming int/O her ports to
unload the whole of their cargoes and i)ay duties upon them,
even though portions of such cargoes were consigned to ports
in another country, will not be (luestioned ; and if it were made
to appear that such a law existed at the time the cargo of the
ship Henry Thompson was seized, the board would feel itself
constrained to reject the claim. Such a law, however, would
be extraordinary in its character and in contravention of those
principles of liberality by which the commerce of civilized
nations is governed. The board can not in the absence of tes-
timony presume the existence of such a law. The reasons
assigned by the Mexican members of the joint connnission for
their refusal to recognize the validity of the claim are not
found among the records or papers belonging to that commis-
sion. • * * A letter from the American consul at Vera
Cruz, which is on file with the papers, written immediately
after the decision [of the Mexican court] was made, refers to a
provision in the Mexican tariff law of 1S27 which provided
that the reembarkation of foreign goods, imported at any time,
should not exempt them from the payment of import duties.
• • • In the opinion of this board the provision in the law
referred to could only be api)lied to suc^h goods as had been vol-
untarily imported into Mexico. * * » These goods we;
3384 INTERNATIONAL ARBITRATIONS.
not imported into Mexico. They were shipped from Gibraltar
to New Orleans. The port of their destination was entered
upon the manifest. They were never intended to touch ui>on
Mexican soil, or to be entered at a Mexican custom-house.
They were only taken within the harbor of Vera Cniz because
the vessel in which they were shipped had a portion of her
cargo which belonged there. » • •
<' Upon a careful examination of the case the board is brought
to the conclusion that the exaction of duties was illegal and
unauthorized and constitutes a valid claim against the Govern-
ment of Mexico, and the same is accordingly allowed.^'
" The brig Spletidid, of New York, was in-
CaM of ^® "^P ^' sured by the Atlantic Insurance Company, of
Philadelphia, on the 20th of August 1835,
for a voyage from Norfolk, Virginia, to Montego Bay, Jamaica,
and thence on her return to the United States. Bv an in-
dorsement on the policy dated November 3, in consideration
of an additional premium, permission was given to the vessel
to proceed from Montego Bay to Tabasco, in Mexico, with-
out prejudice to the policy. The Splendid sailed from New
York on the 13th of July 1835 to Norfolk, aud having there
taken in a cargo of lumber, and three boxes containing soda
powders, proceeded to Jamaica. The master, on his arrival,
finding tliat the soda powders were prohibited, deposited
them in the custom-house, to be reshipped to the United
States. After disposing of the lumber he took on board
twenty tons of stone ballast and the three boxes of soda
powders, which he ha<l deposited and which were entered on
the manifest lor the United States. He then sailed for Tabasco
for the purpose of procuring a cargo of logwood.
*' On the arrival of the brig at Tabasco, on the 28th of Sep-
tember following, her papers were examined by the custom-
house officers, who informed the master that they were all
right. A few days afterward the vessel was seized by order
of the district Judge, find without even the formality of a trial
was sold at auction for the benefit of the government. The
master and crew were at the time imi)risoned and kept in close
confinement several clays. After his release the master entered
his protest before the consul of the United States, abandoned
the vessel, and returned home. The only reason assigned to
justify the seizure of the vessel was the fact of finding on
board the three boxes of soda i)ow(lers, which it is alleged
were prohibited by the laws of Mexico. Whether this was a
REVENUE CASES. 3385
prohibited article it is not material to inquire in order to deter-
mine whether the vessel was properly seized. It is clearly
proved that the soda powders were manifested for the United
States, and that no attempt was made to introduce them into
Mexico. Nothing occurred which could justify a suspicion of
any intention to violate the laws of Mexico or to defraud the
government. The seizure and sale of the vessel under these
circumstances upon the mere order of the judge was wholly
unjustifiable, and a gross violation of the laws of nations, for
which the Government of Mexico was justly responsible. The
insurance company, upon a com])romise with the owner of the
vessel, paid the sum of $2,375 in discharge of the policy."
An award was subsequently made in favor of the Atlantic
Insurance Company for $4,020.12 — principal $2,375, interest
$1,645.12.
Opinion of the commissioners under the act of Congress of March 3,
1849.
An award was also made in the foregoing case in favor of Daniel Col-
lins, owner of the brig, for damages resulting from the seizure and sale,
less the amount received from the insurance company. The award to Col-
lins was $6,434.37~principal $3,625, interest $2,809.37.
*^The claimant resided in Mazatlan, in Mex-
Panotfs Case, ico, in 1845 and held a commission as consul
of the United States for that port. He was
also extensively engaged in mercantile business, and was
the only surviving partner of Parrott & Co. On the 18th of
March 1845 Timoteo Canedo, the collector of the port, issued
an order against l^arrott cS: Co. for the payment of $4,772.25^,
which it was alleged was due from them for consumption du-
ties on two cargoes of goods which they had imported in 1841.
Upon the presentation of this order Parrott refused payment
of the money alleged to be due, on the ground that no such
duties could be legally demanded. The collector then referred
the question of the legality of the demand to a lawyer, who,
after an examination of the subject, gave an opinion in writing
that there was no law in force at the time the goods were im-
ported which would justify the exaction of the duties alleged
to be due, and recommended a suspension of proceedings
against the claimant. Upon this opinion the proceedings were
suspended and the demand withdrawn.
'*On the 14tli of Ai)ril, by order of the collector, the demand
of payment was renewed, and, on the refusal of Parrott again
r.
3386 INTERNATIONAL ARBITKATIONS.
to pay the money, an embargo was issned by the collector against
his property. The real estate of Parrott, consisting of store
houses^ warehouse, and dwelling, with the appurtenances,
• ♦ • were seized under this order and placed in the posses-
sion of a Mexican officer.
"The claimant then appealed to the supreme Mexican Gov-
ernment for relief against the embargo, through Mr. Black,
consul of the United States at the City of Mexico, there being
then no minister there representing the United States. Mr.
Black, in a letter to the State Department, dated 3rd July
1845, stated:, < I have as yet received no reply to my note to
this government in relation to the illegal embargo of the house
of Parrott & Co. of Mazatlan, referred to in my letter to the
Department, No. 335, but I have no doubt that orders have
been given to have the embargo raised.' It does not appear,
however, that the expectations of the consul were realized.
Commodore Sloat, who was in command of the Pacific squadron
in 184C, addressed a letter to the State Department 13th No-
vember of that year, in which he stated:
"*On my arrival at the port of Mazatlan in November last I
found a large amount of i)roperty under embargo and detention
by order of the Mexican Government belonging to J. Parrott,
esq.. United States consul at that i)lace. * • » On inves-
tigating the case duly, and procuring from other sources all the
information I could acquire and enough to satisfy me that the
proceedings against Mr. Parrott and his property were palpably
unjust, on the 25th of November hist I addressed a communica-
tion to the minister of relations and government of Mexico de-
manding a release of the property of Mr. Parrott, and a suita-
ble indemnification for the losses and wrongs ho had suffered.
Notwithstanding I apprised the Mexican Government that I
should await on the coast its answer to my letter, during the
whole of my stay at Mazatlan, near seven months, I never
received any answer from it on the subject.'
" The claimant alleges that he did not regain the possession
of his property until January 1849. Whether he was kept
out of the possession until that time by reason of the embargo
does not appear from the testimony. From the letter of Com-
modore Sloat it may be inferred that when he left Mazatlan,
which was in June or July 1840, the proi)erty was still held
under the embargo. A decision was made by the Treasury
Department 17th November 1S48, that the consumption duty
could not be legally demanded in the ])ort of entry in which the
goods were entered. This decision establishes the illegality of
REVENUE CASES. 3387
the embargo, and it is very probable that it was withdrawn
immediately afterward. It may be proper to remark that a
similar demand for consumption duties alleged to be in arrears
was made by the collector from Messrs. Scarborough & Co.,
English merchants residing at Mazatlan, at the same time the
demand was made of Mr. Parrott. Upon their refusal to pay
an embargo was issued upon their property, but upon their
threatening to resist its execution by force all attempts to
execute it were abandoned, and it was subsequently withdrawn.
"The board is satisfied from the evidence before them that
the demand made upon the claimant was illegal, and that the
embargo and all subsequent proceedings were unjust and op-
pressive and constitute a valid claim for indemnity.
"An additional claim is presented by Mr. Parrott, growing
out of a seizure of a cargo of goods imported by him in the
Hamburg brig Matador and entered at the port of Monterey.
It is very satisfactorily proved that at the time the goods were
entered at Monterey in July 1845, the duties were fully paid,
amounting to the sum of 867,873.32^. The greater part of the
cargo of the Matador ^ after the entry at Monterey and the
payment of the duties, was reshipped on the Mexican vessels
Julia and Repuhlianaj and sent to Mazatlan and San Bias.
Before the goods shipped on the Julia were landed they were
seized by virtue of an order from the treasury department of
the Mexican Government, upon the allegation that the duties
had not been paid and that a porticm of the goods were con-
traband. Those shipped on the Eepubliana were seized by
virtue of the same order after they had been transported to
the interior to be sold. These allegations were clearly dis-
proved on investigation, but yet the goods were only released
npon the condition that Parrott, the owner, should give bond
with security to pay the duties, should it afterward be dis-
covered that they were due. These bonds were given and the
goods were released. The claimant alleges that he was com-
pelled to deposit the sum of $100,000 with his securities, as an
indemnity to induce them to execute the bonds— that the bonds
have never been surrendered or canceled, and that therefore
he has been unable to procure a return of this deposit. This
allegation is not proved. One of the securities has given a
deposition in which he alleges that he executed the bond from
motives of friendship for Parrott, having no interest in the
matter, but he does not show that he received any indemnity.
3388 INTERNATIONAL ARBITRATIONS.
*<The seizure of the goods was an arbitrary act, without
any justifiable cause^ and must have resulted in injury to the
claimant."
Opiuiou of Messrs. Evans, Smith, and Paine, oommiisioneTS, February
1951, under the act of Congress of March 3, 1849.
<< It is sufficiently proved that the claimant
Vanstavoren's Case, in the year 1839 shipped, per brig Charles Oar-
roll from New York, 17 boxes of Oavendish
tobacco, containing 2,125 pounds, which were consigned to the
Messrs. Hargous & Brothers, at Vera Cruz, and that on the
arrival of the vessel and delivery of the manifests the tobacco
was seized by the custom-house officer, and detained as a pro-
hibited article of imi)ortation. It is not altogether clear that
the seizure was illegal, because the tariff laws of Mexico at the
time are not so distinct upon the subject of the importation of
tobacco as to leave the question of the prohibition of this kind
of tobacco without doubt. Yet the requirements of the law
afifecting ai'ticles which might be seized as prohibited mer-
chandise were not followed by the authorities. The law re-
quired that the legality of the seizure should be a^udicated
within a certain time; but the public authoiities of Mexico,
although rei)eatedly applied to by the consignee of the tobacco
to bring the case before a judicial tribunal, refused or ne-
glected to do so, and the tobacco was kept in the hands of the
seizors for several years and until the same was abandoned by
the owners. From the evidence the board is satisfied that the
case was never adjudicated and that most probably, through
this willfulness or neglect on the part of the government au-
thorities of Mexico, the property became a total loss to the
claimant. The board is therefore of opinion that the claim
• • • is a valid claim against the (rovernment of Mexico.^
Memorial of George W. Vannlaroren : Opinion of Messrs. Evans, Smith,
and Paine, commiHsioners, .Jjiunary 8, 1851, under the act of Congress of
March 3, 1849.
"The claimant alleges in his memorial that
Boon's Case. in September 1830 he was at Chihuahua with
two wagonloads of goods from the United
States; that he paid at Santa Fc all the duties which were
charged upon the goods; that in April 1831, having sold out
his goods at Chihauhua, he prei)ared to return to the United
States when a custom-house officer of the Mexican Govern-
ment with a number of armed soldiers entered the house
occupied by him and seized six bags of silver, each containing
REVENUE CASES. 3389
(me thonsand dollars, the officer alleging that be made the
seizure for duties due on the goods which he had imported.
The officer alleged that other duties than those paid at Santa
F6 were due for the payment of which the seizure was made.
To support the claim the deiK)sition of John Prewett has been
filed. Mr. Prewett states that <he was in Ohihauhua in April
I83I9 and resided in the same bouse with Scott, and was pres-
ent with him in said month, when a Mexican officer, and as
this affiant believes, an officer of the custom-house, or a rev-
enue officer of the Grovernment of Mexico, entered the house
of said Scott with a file of soldiers in the Mexican service and
seized upon and took away from said Scott six bags of money
in silver coin, containing, as this affiant believes, one thousand
dollars each; the said officer alleging at the time, as well as
this affiant now remembers, that said seizure was made for
duties due upon the goods of said Scott.'
" This deposition is all the testimony which has been pre-
sented to the board. The general statements which it presen ts
are not sufficient to show any responsibility on the part of the
Mexican Government for the alleged loss of the claimant's
money. Twenty years have elapsed since the loss complained
of occurred. During all that time ho complaint has been
made either to the Government of the United States or to the
Mexican Government, and no demand for indemnity has been
presented. No claim was presented to the commission organ-
ized under the convention of 1839, and it has been presented
to this board at a very late period. This long delay in pre-
senting any claim for indemnity, although not conclusive evi-
dence against the validity of the claim, may well excite some
suspicion and justify a demand for proof more definite than
that which has been presented. » » »
" If the facts occurred as they are stated by the witness, the
most rational inference is that it was a mere robbery perpe-
trated by a lawless band of soldiers, or by ruffians who, for
the occasion, assumed their character, and used the name of a
custom-house officer to cover the crime. For such a wrong
the government can not be held responsible. Upon no princi-
ple of national law can a government be held responsible for
every act of lawless violence which may be perpetrated within
its dominions. If an illegal exaction of duties had been made
by an officer of the government charged with the duty of col-
lecting its revenue, it might be charged that the government
should be accountable; but in this case that is neither charged
3390 INTERNATIONAL ARBITRATIONS.
nor proved. The money, it is alleged, was taken by*a cnstom-
house officer. A weigher, ganger, or a clerk in the cnstom-house
might be called a custom-house officer, yet the government
conld not be held accountable for any act of lawless violence
he might h^ve committed. A remedy migh t have been afforded
the claimant by the judicial authorities of the place, but it
does not seem that any application was made to them. There
is not sufficient proof to show that the wrong, if any was per-
petrated, was done by an officer for whose acts the government
could be held responsible."
Memorial of JVilliam L. Scott: Opinion of Messrs. Evans, Smith, and
Paino, commissioners, March 22, 1851, under the act of Congress of March
22, 1851.
<<The memorial sets forth that in the month
^•""^V'^' of May 1832 the schooner Express sailed from
New Orleans with a cargo on board, belong-
ing in part to the memorialist, bound for Omoa, in the Bay
of Honduras, intending to touch at Truxillo for the purpose
of landing passengers and a portion of the cargo. Upon
arriving: at this latter place it was ascertained that the i>ort
and castle of Omoa were in a state of rebellion and were
then besieged b^ the troops of Guatemala, and that all com-
mercial intercourse with that port was interdicted. The cap-
tain and sui>ercargo of the vessel thereui>on * resolved to seek
another market for the cargo and set sail for Sisal, Yucatan, in
the Eepublic of Mexico,' but upon arriving there found that
port blockaded, and thence continued the voyage to Cam-
peachy, where they arrived the 18th of June. The manifest of
the cargo was exhibited to the custom-house officer by whom
the vessel was boarded, who informed the captain that it
should have been certified by the Mexican consul at the port
of departure. On the following day the captain and super-
cargo attended at the custom-house and delivered the mani-
fest, upon inspection of which it was found that there were
several prohibited articles on board, which by the Mexican
laws were liable to confiscation. Proceedings were therefore
instituted before the district judge, before whom the master
and supercargo appeared, when, in the language of the memo-
rialyHhe whole matter was fully explained and understood.'
The judge however decided that the prohibited articles were
liable to confiscation and gave judgment accordingly, and also
mulcted the vessel with an additional penalty of $202.62. The
REVENUE CASES. 3391
memorialist claims indemnity for the articles thus confiscated,
and for the penalty imposed.
^'ISio appeal appears to have been taken from this decision.
The claim was not presented to the joint commission under the
convention of 11th of April 1839, nor does it appear that the
interposition of the Government of the United States was ever
invoked in the case. These are circumstances indicative of a
conviction on the part of the memorialist that the Mexican
authorities were justified by the laws of Mexico in the pro-
ceedings which took x)lace. The vessel voluntarily entered a
Mexican port seeking a market for her cargo, a part of which
consisted of merchandise not allowed by the laws of the country
to be imported. Those laws imposed a penalty for such impor-
tation, and it is not alleged and does not appear that anything
more was done than they required. No complaint is made that
the trial before the district judge was not fairly conducted, nor
that his judgment was unauthorized by the laws of Mexico.
In the opinion of the board the memorial does not set forth a
valid claim against Mexico, and it is therefore rejected."
Memorial of James F, Desbois : Opinion of MessrH. Evans, Smith, and
Paine, commissioners, January 17, 1850, under tlie act of Congress of March
3, 1849.
^'The St. Croix sailed irom New York to
^^^l''^^ Aransas Bay, in Texas, in 1834, with a party
of colonists and their elfects. After the pas-
sengers and cargo had been discharged by the permission of
the collector of the port, a demand was made by the captain
[of the port] for tonnage duties alleged to be due, amounting to
$210. Captain Ward, alleging that he had understood that
vessels arriving with colonists were not liable to any charge
for tonnage duties, and had not therefore provided himself with
funds to meet such a charge, ottered to pay $100, which was all
the money Ire had at the time, and ottered to draw upon the
owners of the vessel for the residue, or to procure the money
there, if a short time should be allowed him for the purpose.
While he was endeavoring to make arrangements to raise the
money he was finally seized by order of the collector and im-
prisoned twenty-nine days, when he was discharged. In the
mean time the vessel had been dismantled, her sails carried ott',
her stores destroyed or taken away by the order of the collec-
tor, and the captain deprived of all control over her. He then
protested and abandoned her and returned to the United
States. ♦ ♦ »
3392 INTERNATIONAL ARBITRATIONS.
« The forcible seizure of the vessel ander the cirenmstaiioes,
the carrying off her sails, and the waste and destruction of her
stores for the nonpayment of tonnage duties alleged to be due,
without any judicial proceedings either to ascertain the amount
of the duties, or to direct the means of enforcing their pay-
ment, appears to the board as an act of illegal violence, justi-
fied by no law of Mexico of which they have any knowledge,
and constituting a valid claim."
Memorial of JVilliam I), MoCariy, a»9igfiee of John WooUeif: Opinion of
Messrs. Evans, Smith, and Jones, commissioners, November 28, 1849, under
the act of Congress of March 3, 1849.
*' The schooner Patrick B, HayeSy an Ameri-
^*^3^yJ,**'^can vessel registered at PhUadelphia, sailed
from that port to Vera Oruz on the 20th of
September 1827 with a cargo of brandy, sperm candles, and
cigars. The vessel and cargo were owned by Patrick Hayes,
the claimant, who was a citizen of the United States. Two of
the crew being disabled by sickness when the vessel reached
the Gulf of Mexico, Oommodore Porter, who was in command
of a Mexican vessel of war, having met the schooner and find-
ing her crew insufficient to navigate her, took the sick sailors
on board of his vessel and sent two of his own crew to fill
their place. On the night of the 12th of October, one of the
Mexican sailors furnished by Commodore Porter being at the
helm, through his carelessness or treachery the vessel was
grounded on the coast of Yucatan, opposite Telhuac. The
captain, having thrown overboard a part of the cargo with
out getting the vessel off, on the morning of the 13th inst.
went on shore for assistance. The inspector of the port sent
out a boat, which took off a x)art of the cargo and also picked
up a portion of what had been thrown overboard to lighten the
vessel. The inspector then- took possession of the vessel and
detained the captain on shore several days, reftising to allow
him to return on board. The captain applied to the judge of
the district, Juan Jose Seal, exhibited to him his papers, and
requested the restoration of tlie vessel and cargo. This the
judge refused to do, but after some days' delay ordered the
cargo to be reshipped, and sent the vessel to Sisal for the pur-
pose of instituting proceedings to procure their forfeiture.
When the schooner arrived at Sisal the cargo was landed and
deposited in the custom-house. Seal then instituted proceed-
ings before the circuit court at Merida upon the allegation that
the brandy which constituted the larger portion of the cargo
REVENUE CABE8. 3393
was of Spanish manufactare and therefore prohibited . Captain
Huuston made every effort in his power to procure a decision
of the court, but without success, and finally, about the latter
part of December, abandoned the vessel and cargo and returned
to the United States.
^^ In the mean time the claimant, who happened to be at
Havana, hearing that his vessel had been seized, proceeded
to Sisal and arrived there in January 1828. The court at
length, in February, decided that the brandy was not of Span-
ish manufacture and was therefore an article of legitimate
commerce, and that the vessel was not liable to seizure; bat
in consequence of the resemblance of the brandy to Spanish
brandy, and the suspicions attaching to the vessel from her
grounding at Telhuac, the owner was subjected to the payment
of all the costs and expenses which had been incurred. An
appeal was allowed irom this decision to the claimant, upon
his giving bond with security conditioned to comply with the
final decision. Several securities were offered who were re-
fused, upon gi*ounds strongly indicating an intention to com-
pel the claimant to abandon the appeal. The claimant was
finally compelled to consent to a sale of the vessel and cargo
for the payment of the costs and charges imposed on him by
the court, which amounted to over $1,500, in addition to the
duties on the cargo, which were about $1,200. The vessel and
cargo were sold at public sale, and out of the entire proceeds
the claimant, after paying the duties, costs, and charges, real-
ized but about $1,7Q0.
**The proceedings against the property of the claimant were
vexatious and oppressive in the highest degree. The papers
produced in evidence satisfactorily prove that the voyage was
a legal one, honestly undertaken, and without any intention of
fraud. The brandy had been imported from Marseilles by the
claimant but a few days before it was shipped for Vera Cruz.
The seizure of the vessel was wanton and without excuse. The
proceedings were unnecessarily delayed, occasioning great
expense and trouble to the owner and captain. And when at
length the tardy proceedings of the court were brought to a
close, although that tribunal was forced to decide that the
charges upon which the proceedings were instituted were false
and unfounded, the sentence of acquittal was accompanied by
an order for the i)ayment of enormous costs and charges upo
the ground that an intention of fraud had been suspected.
•^ "»V/,V7 iA;*rai^,Ar v^ ;4:-.r«^ ii ajtaji;?? "late <Tptf^ «f
'••if* V*-;*: ;.4i/j. J* .. •:.^:*.f..:»r d»T:.'i«: br :1c bconi ihai the
"Ti,H Sri^ Jl'trru.^' saili^ from XewOrfcaii*
/!*%• ' '^ fnou::i of 3ijrcii lM4 tjoand for Tarn-
l»j'^K in M^-Tiico. When near tbe laner port
Ifi^ iffi'ti »a*, *J;iv#rfi on shore by a -t-irm ami bilged. Some
*l'^y* AUMt rhj- ry:/rfjrrenc»- th*- vessel and c:ir;jo were sold
;it j/fjMic arj/'tion a^ hhe lay. wjiij the con >ent of the master
»ri*J th<: l'u\UA Htat^y. consul at Tami»Rtj. Tbtr rlaimant be-
i^ariKr tjiu pfin-ha-^rr for the sum of *fi',0<Nj. He employed a
}'At[i*' unui\n'r of hand-t and prrK:ee<led to land as mach of the
*'itti(o an #:*>fild U? ;.'ot froiii the wreck. The most of it. consist-
iiiK of fiirnirnre, dry *(rKKi.-i. t'lftckeiry, wax. wine, and quick-
KiJv<?i, vi'ttH carried on shore. * ♦ • After the goods were
landwj a jKirt ion of them, e.stimat^.'d by some of the witnesses
at on<' fourth of fhe^ whole amount, were pillageil or forcibly
franie^l 4,il by the natives on the coast. The claimant, fearing
that all hiM ^oo^Ih would he lost, apjM-aled to an alcalde and an
oflirer of the customs at tlie village of Los Pressas, in the
ni'jf^hborhood, to proti'ct them, and by an aji^reement with them
the, re.Hidue of the go^nls was deiKisited in tlie public buildings
at that place. The custom-house otlicer soon afterward sold a
portion of the ginnls witliout the consent of the claimant and
refuNcd to pay him the iirocee<ls. He also refused to deliver
any portion of the car^o still left in his jM>sse8sion.
** Tlio collector of customs at Tamj)ico finally took possession
of the goiNls and, refusing to deliver them to the claimant, or
BEVKNUE CASES. 3395
to afford him any other redress, referred him to the supreme
government of Mexico. The witnesses state that the claimant
applied to the supreme government through Mr. Wilcox, the
United States consul at the City of Mexico, for redress, but
without success. The board is satisfied from the evidence that
the property was wholly lost to the claimant and that he has
never obtained any indemnity. The pretext upon which it was
detained by the collector at Tampico is not shown. Whether
it was for duties alleged to be due or for any violation of law
does not appear. The matter appears to have been brought to
the notice of the supreme government, and under all the cir-
cumstances disclosed by the testimony it is not an unreason-
able presumption that the proceeds went into its treasury.
"The property has been traced into the custody of the col-
lector of customs, and as nothing has been shown which would
justify its detention, and as the supreme government when ap-
pealed to refused to order a restoration or aftbrd any redress,
it should be held responsible for the loss resulting to the
claimant."
Memorial of Joseph Bosque; Opinion of Messrs. Evans, Smith, and
Paine, commissioners, March 27, 1851, under the act of Congress of March
:i, 1849.
"The schooner Hylaft sailed from Ports-
Case of the "Hylas/* mouth, New Hampshire, for Tampico, in Mex-
ico, in February 1830 with an assorted cargo.
She arrived in Tampico in March, and her manifest was sent
to the collector immediately after her arrival. The collector
in a few hours afterward sent on board an officer and assist-
ants, who took possession of the vessel and closed the hatches
upon the ground that the cargo consisted of articles which
were prohibited by the laws of Mexico. After some delay
the vessel was unloaded, and all the cargo except the pro-
hibited articles was delivered to the consignee, and by him
disposed of. The prohibited articles were stored in the cus-
tom-house and probably confiscated, although that fact is not
clearly proved. The residue of the cargo and the vessel were
subjected to no further restraint after the payment of duties.
"The evidence in this case presents no facts upon which the
Government of Mexico could justly be held responsible for tlie
injuries which resulted to the owners from the seizure. The ves-
sel arrived at a Mexican port with many articles which the
laws of the country expressly prohibited, under the penalty of
5627— VOL. 4 11
3396 INTERNATIONAL ARBITRATIONS.
confiscation. The collector had an undoabted right to seize
those articles. To do this it was necessary to take possession
of the vessel. It was his duty to proceed without unreason-
able delay in the manner which the laws of the country pre-
scribed to enforce the penalty which had been incurred. If
any just claim to indemnity exists in this case it can only be
based upon the delay which occurred before the part of the
cargo which was liable to confiscation was separated from the
residue. A deposition of the supercargo states that the vessel
and cargo were in charge of the custom-house officers forty or
fifty days; but it is not alleged or proved that under the laws
of Mexico any more summary proceedings could have been
adopted. It appears from a letter from the collector to the
minister of finance, quoted in a letter of the secretary of foreign
affairs to the minister of the United States, that during that
time he was waiting for instructions from the department. In
that letter he stated :
"'In my dispatch of 20th of March last I informed your
excellency of these occurrences, sendmg you at the same time
documents in proof of them; and your excellency in conse-
quence was pleased to direct me, by your superior order of the
21st of the same month, to proceed in the affair agreeably to
the law of May 2nd. Upon this I caused the vessel to be
unladen, the part of the cargo which was admissible to be
entered, agreeably to the existing tariff and to the said law of
2nd May, leaving only in the public stores the goods prohib-
ited by the thirty-sixth article of the 3rd chai)ter of the said
tariff, comprehending the soap, tallow, candles, morocco, made
clothing, etc.'
"A letter of the consul of the United States dated May 8th,
1830, stated : ' The collector has given me all the cargo with the
exception of the prohibited articles, such as soap, candles,
etc.'
"The deposition of the supercargo states that when he dis-
covered that a part of the cargo was prohibited he requested
permission to return with it to the United States, which was
refused. This refusal presents no ground for indemnity. The
vessel sailed direct for Tampico, with her cargo all manifested
for that port. She anchored in the port and her papers were
delivered to the collector. She was then within the jurisdic-
tion of Mexico and subject to the laws of the country. The
penalties incurred could not be avoided by a voluntary offer to
depart with the unlawful cargo. Nor could ignorance of the
laws of Mexico (which is alleged) furnish any exemption from
REVENUE CASES. 3397
their penalties. It was the duty of those who traded in her
ports to inform themselves of the extent to which the laws
permitted their commerce. The owner undoubtedly sustained
a loss as a consequence of the seizure of the vessel and cargo,
but as the same was clearly warranted by the laws of Mexico,
and it is not proved that the laws were perverted or violated
to the injury of the claimant, he is without redress. His loss
must be regarded as the conseriuence of an attempt, whether
knowingly or ignorantly, to violate the laws of Mexico by the
introduction of goods which were prohibited."
Memorial of Nehemiah Mones: Opinion of Messrs. Evans, Smith, and
Paine, commissioners, March 5, 1851, under the act of Congress of March
3, 1849.
The schooner Eclipse^ belonging to citizens
"Edi " ^^ *^® United States, sailed from Mobile in
the month of February 1836, having on board
a fi*ame and materials for a house, bound to Tabasco. She
arrived at the bar of the river on the 26th o. that month,
where she was boarded by a custom- house officer, to whom the
proi)er manifests were duly delivered. The captain was taken
on shore in the custom-house boat and detained until the
next day. The vessel proceeded up the river to a place called
Frontera, where, on the 2Sth, she was visited by five officers
of the customs, who commenced a rigorous search, and tore
oi^en the lockers and staterooms under tbe pretense that pro-
hibited articles were on board. She was afterward subjected
to repeated examinations and spoliations, accompanied with
ill treatment of the master and crew. The consul of the United
States, then residing at Tabasco, attributed these proceedings
to the excited state of popular feeling in Mexico against the
United States, growing out of the revolutionary movements
then taking place in Texas. The commissioners under the act
of Congress of March 3, 1840, to whom a claim growing out of
the transaction was presented, said:
" In the opinion of the board these facts constitute a valid
claim against tbe Republic of Mexico. They were the acts of
pubhc officers, of officers of the customs, of the military and of
the judicial departments. They were not the acts of unauthor-
ized individuals, but were shielded and sanctioned by those
exercising authority in the name of Mexico, and undoubtedly
had their origin in the causes assigned by the vice-consul of
the United States.''
3398 INTERNATIONAL ARBITRATIONS.
<^The claim for loss on goods alleged to have
Beiden'i Oaie. been detained at Durango is not valid. It
rests upon a general declaration of the reve-
nue officer at Zacatecas, that he would seize all goods coming
within his jurisdiction that proved to be of the description
prohibited by the tariff of 1837. The claimant alleges that
in consequence of this declaration (not known in any instance
to have been carried out) he was prevented from taking his
goods from the warehouse at Durango to carry them into other
markets, lest they might be seized. If this claim could be
valid there was not an American merchant residing in Mexico
that might not say he was injured by that declaration. It is
not shown that the threat was made to att'ect any particular
individual or against American goods merely.^
Memorial of John Belden : Opinion of Messrs. Evans, Smith, and Paine,
commissioners, March 31, 1851, under the act of Congress of March 3, 1849.
^^The claimant in this case seeks to obtain
LoveU'i Cass, indemnity for a payment of $2,000, made by
his agent in Alamos, in Mexico, in the year
1829, to ])rocure the release of certain goods belopging to him,
which had been seized upon a charge of violating the revenue
laws.
''By the revenue laws then in force in Mexico, all goods
imported into the country were subject, in addition to the
import duties which were paid to the general government, to a
consumption duty to be paid in the State in which they were
sold. Foreign goods, after being entered at a custom-house,
and the import duties being paid, if carried to any point in the
interior for sale, were required to be accompanied with a man-
ifest and clearance from the custom-house at which they were
entered, and the consumption duties were payable upon the
goods embraced in the manifest at the place in the interior at
which they were offered for sale. The collectors of the interior
custom-houses were authorized to confiscate any goods upon
which it was shown that the import duties had not been paid.
It was also competent for the importer, after carrying his
goods to any particular i)oint in the interior, to pay the con-
sumption duties ui)ou such portion of his goods as he might
sell at that point and send the residue, with a manifest and
clearance from the custom-house, to any other place in the
interior where he might wish to oft'er them for sale. By this
regulation the consumption duties were paid on each piece of
goods at the place where it was sold.
REVENUE CASES. 3399
"In the year 1829 the firm of Lovell, Tylor & Co. (of which
claimant was a member) dispatched from Matamoras to the
interior a quantity of goods with the usual manifest and clear-
ances. A portion of them being sold at Saltillo, the consump-
tion duties on that portion were paid at that place, and the
residue were sent by these several carriers to Alamos, the
quantity taken by each carrier being accompanied with a new
manifest and clearance from the customhouse at Saltillo.
After remaining at Alamos a short time, Lovell took a portion
of his goods in the manifest and clearance to a town called
Jesus Maria, in the State of Chihuahua, leaving the residue in
charge of Reuben M. Potter, an agent. Shortly after Lovell
left Alamos a charge was made in legal form by the collector
before an alcalde that a portion of the goods which were
brought to Alamos were not embraced in the manifests, and a
confiscation of all the goods not so embraced was demanded.
Two persons were appointed by the alcalde to examine the
goods and compare them with the manifests, who, after the
examination, reported that tlie goods did not correspond with
the manifests and specified those which were not embraced in
them, and were tlierefore liable to confiscation. Potter then
requested that time miglit be afforded him to show that the
report of the examiners was erroneous. This was granted, tlie
alcalde in the mean time closing the store and taking posses-
sion of the keys. On the next day Potter solicited tbe inter
l)08ition of the vice governor, of the State, who was then at
Alamos, stating that lie ^wishes to have the matter closed
without judicial proceedings, and that he would conform to the
dispositions he might make as to what should be allowed to
the implications and informers.' The vice-governor, in his
certificate of the transactions, stated : *I immediately rei)aired
to Potter's store to advise him of the result and ask him how
much it would be well to guarantee to those interested, in
place of their legal emoluments, to which he replied that I
might dispose as 1 deemed advisable, observing also that the
amount of contraband did not probably exceed three or four
thousand dollars.' The compromise was then completed by the
payment by Potter of $1,500 to the officers interested in the
seizure, and also the import duties on the goods which it was
alleged were not embraced in the manifests from Saltillo. The
duties paid amounted to the sum of $533.87. The goods were
then released.
"This account of the transaction is taken from the expediente
3400 INTERNATIONAL ARBITRATIONS.
which is presented as evidence to sustain the claim. A depo-
sition of Potter accompanies the expediente in which he gives
a history of the transaction, which so far as regards the pro-
ceed ings corroborates the expediente. He, however, denies that
any of the goods were liable to confiscation, but admits that
some of the goods specified in the manifest taken out for Jesus
Maria were not embraced in the manifests from Saltillo. The
proceedings he alleged were based on these discrepancies, apart
of which he says *wore merely verbal and the rest had arisen
from inadvertence.' He admits that he solicited the interpo-
sition of the governor and that the compromise was made
through him as statM in his certificate. He does not admit,
however, that he stated to the governor that part of the goods
were contraband. He says: *He (vice-governor) expressed a
willingness to intercede and inquired of me what amount of
contraband goods I had on hand, to which I replied, "None.'^
He then inquired what amount there was, though not contra-
band, that might be implicated by the proceedings then pend-
ing. To wliich I replied, in substance, that from the unjust
and illegal manner in which the authorities were proceeding
they might perhaps contrive to implicate a considerable
amount, naming a sum which 1 do not now recollect.'
"The money was paid by the claimant's agent voluntarily
upon a compromise of the proceedings instituted against the
goods, and it is by no nieiins clear, even from the testimony of
the agent, that a portion of the goods was not liable to con-
fiscation. In his deposition he states: 'I supposed tliat the
goods were more compromised on the ground of technical
informality than they were.' This must be regarded as an
admission that they were compromitted to some extent. If
any portion of the goods was liable to confiscation the officers
had a right to institute proceedings to ascertain the extent to
which the government might proceed to obtain satisfaction
for the violation of the laws. If the claimant or his agent
voluntarily paid a sum of money to suppress the proceedings
and prevent the investigation, the board can perceive no
ground upon which the Government of Mexico can be required
to refund it. The board tlierefore decides tliat the claim pre-
ferred by Benjamin D. Lovell against the Kepublic of Mexico
is not valid and it is disallowed."
Opinion of M<*s8r8. Evans, Smith, and Taino, commissioners, February
28, 1851, under the act of Congress of March 3, 1849.
REVENUE CASES. 3401
"Messrs. Uhde & Co. were merchants of
Case of iThde it Co. Mataraoras, where they had resided from the
year 1842, carrying on trade there, having a
honse of business and a home in that city. They continued
to reside there after the declaration of war by the United
States against Mexico in 1846, and until 1851.
According to the interpretation of the law of nations, by
the highest courts in Great Britain, it is a point settled,
'beyond controversy, that where a neutral, after the com-
mencement of hostilities, continues to reside in the enemy's
country for the ]>urposes of trade he is considered as adliering
to the enemy, and as disqualified from claiming as a neutral
altogether.' (See Dr. Lushington's judgment in the case of the
Ainaj reported in the Jurist of July 1855.) However good
the claim of Messrs. Uhde & Co., as conquered Mexicans,
against the United States, by tlie interpretation of the law
of nations as given by the decisions of the courts of Great
Britain may be, the claim ought to be excluded ft*om this com-
mission. The Government of the United States have, how-
ever, entertained the claim in the correspondence between the
diplomatic agents of the two countries, and for this reason we
hold it should be considered and settled without further delay.
" I shall proceed, therefore, to examine and decide the case
on its merits. The case is as follows: On war being declared
by the United States against Mexico in 1846, the ports of
Mexico were declared in a state of blockade; but several ports
(amongst them the port of Matamoras, on the Kio Grande)
having fallen into the possession of the United States forces,
the government, on the 30th of June of that year, issued a
circular, addressed to the collectors and other officers of the
customs in the United States in regard to Matamoras, to the
following effect, viz:
" 'In the case of application of vessels for clearance for the
port of Matamoras, you will issue them under the following
circumstances:
'''1st. To American vessels only.
" '2d. To such vessels carrying only articles of the growth,
produce, or manufacture of the United States, or of imports
from foreign countries to our own^ upon which duties have been
fully paid. Upon all such goods, whether of our own or for-
eign countries, no duties will be chargeable at Matamoras, so
long as it is in the possession of the United States forces.
Foreign imports^ which may be reexported in our vessels to
Matamoras, will not be entitled to any drawback of duty; for
if this were permitted, they would be carried from that port
to the United States, and thus avoid payment of all duties.'
3402 INTERNATIONAL ARBITRATIONS.
"Of this circular, which was published in the newspapers
at the time, Messrs. Uhde & Co. must have been aware. They
however sent to New Orleans and chartered the American
schooner SUir for a voyage to Havana, to load a cargo of mer-
chandise for Matamoras, if open, and if not open she was to
proceed to New Orleans to discharge. The circular indicates
that no foreign goods could be shipped from the United States
to that port until the duties had been fully paid. Messrs.
Uhde & Co. could not, therefore, when chartering the SiaVj
have supposed that a cargo of foreign goods, from a foreign
port, could enter without paying duty, when foreign goods
from the United States were chargeable with /till duty in the
United States in order to their admission free at Matamoras.
"It is stated that it was known at Havana, when the Star
sailed, that the port of Matamoras was blockade<I ; but it is
very extraordinary that a vessel should proceed to a port
known to be blockaded to inquire whether it is so or not. The
Star arrived at Brazos the 0th of November 1846, which is on
the Texan bank of the Rio Grande. The captain wen t on shore
to inquire if he might enter his vessel, and Mr. G. S. Cook,
who was or assumed to be deputy collector, informed him that
he might, and charged him $7.50 for fees. Captain Merrill, of
the Star, exhibited his manifest, etc., and received a permit to
discharge his cargo in the following words:
" * The master of the schooner Star, from Havana, is author-
ized to discharge her cargo at Barita or at Matamoras.
* G. S. Cook,
' Dsputy Collector^ Brazos St. JagOy November 7, 1846 J
"The schooner was then brought into the river, and the
goods were lan<led in open day by Messrs. Ulide & Co., and
placed in their own warehouses, and were, two days afterward,
seized by the military commander of the place on the charge
of being fraudulently introduced.
" The whole defense of Messrs. Uhde & Co. for their landing
the goods rests on the value and force.they attach to the permit
given to Captain Merrill to discharge his cargo. It was very
well known to everyone conversant with foreign trade that it
is the duty of every shipmaster, on arrival at a foreign i)ort, to
proceed to the custom-house, enter his vessel, and pay light and
port dues; until he has done so he is not allowed to commence
discharging his cargo. But this is very ditlerent from a con-
BEVENTTK CASES. 3403
Ri^ee's permit to land the goods which are entered and bonded,
or the duties paid by the consignees when a i>ermit is granted
to land the same. The seizure was therefore justifiable, as
no inquiry was made by Messrs. Uhde & Oo. if any duties were
payable.
^^ After the seizure, it is stated that the claimants offered to
I)ay the duties of the American tariff which tcM to go into oper-
ation on the 1st of December next. This was refused by Colonel
Olark, the commanding military officer, who seemed determined
to wait orders from a higher quarter.
<<The claimants then made application to the British minister
at Washington, who applied to the then Secretary of State, the
Hon. James Buchanan. The case was referred to the Secretary
of the Treasury, the Hon. B. J. Walker, who examined the mas-
ter of the StoTy brought to Washington by the claimants, and
other evidence, and a final decision was come to that the seizure
was sustained ; but an order was made, directed to the collector
of the customs at Galveston, that the claimants might have
their gck>ds on payment of duty according to the tariff of 1842,
and charges and expense of warehouse rent, and interest on
the duties from the date of the seizure until paid.
<<For some cause the settlement was never carried into effect
The claimants allege that no person ever came to Matamoras,
as directed by the Secretary of the Treasury, and that the
goods were taken to Galveston, condemned, and sold in a
damaged state for about $8,800.
^^My belief is, that bad the arrangement made by the Secre-
tary of the United States Treasury been carried into effect, the
result would have been that the claimants would have realized
near the cost value of their goods. I therefore award to Messrs.
Charles Uhde & Co., or their legal representatives, in full of
said claim, the sum of $25,000, this 15th January 1855.'^
Bates, umpire, convention between the United States and Great Britain
of February 8, 1853. (S. Ex. Doc. 103, 34 Cong. 1 sess. pp. 436-453.)
"The umpire appointed agreeably to the
Gue of the << Baron provisions of the convention entered into
between Great Britain and the United States
on the 8th of February 1853 for the adjustment of claims by
a mixed commission, having been duly notified by the com-
missioners under the said convention that they had been unable
3404 INTERNATIONAL ARBITRATIONS.
to agree upon the decision to be given with reference to the
claim of Mr. Duncan Gibb, of Liverpool, owner of the ship
Baron Renfrew, against the American Governmeut; and having
carefully examined and considered the papers and evidence
produced on the hearing of the said claim, and having con-
ferred with the said commissioners thereon, hereby reports
that this vessel was seized at San Francisco on a charge of
smuggling, and was libeled in the district court of the United
States. At the time it was shown that the merchandise smug-
gled (59 or 99 Bags of Rice) had been entered in the manifest
of the ship as stores, and according to the laws of the United
States the smuggling of stores does not involve the forfeiture
of the ship. She was accordingly cleared and restored to the
claimants by decree of the court. The district attorney held
a difierent opinion and appealed to the Supreme Court of the
United States. The rice was condemned as forfeited, and the
captain of the ship incurred the penalty of three times the value
(the rice sold for $2,200), which being unable to pay, he was
imprisoned. At Washington the judgment of the district
court was confirmed and the ship finally delivered up. The
ship had been valued for bonding at $23,000, but for some
reason the claimant's agent did not see fit to give bond.
" The vessel was seized August 6th, 1852.
"The libel was dismissed September 21st, 1852.
** In custody of the marshal four months and twenty-seven
days, deducting the time from the 6th of August to the 21st
September, for which no reasonable claim for detention can be
made, there appears to have been a detention of three months
and a half for which, and for a portion of legal expenses, I
award to Duncan Gibb, esquire, and owners of the ship Baron
RenfreiVy or their legal representatives, the sum of $6,000 on
the 15th January 1855.''
Bates, umpire, December 23, 1854, convention between the United States
and Great Britain of February 8, 1853. (MSS. Dept. of State.)
Mr. Bates, umpire of the mixed commission
"**^« » ^ under the convention between the United
Son."
States and Great Britain of February 8, 1853,
awarded $1,000 to the owners of the schooner Only Son for
the wrongful action of the collector of customs at Halifax,
Nova Scotia, in compelling the master of the schooner, whose
intention was merely to report for a market and to proceed
REVENUE CASES. 3406
elsewhere if circumstances rendered it desirable, to enter his
vessel and pay a daty of 5 shillings a barrel on 825 Oarrels of
flour, composing the cargo, which the master, having been
compelled to enter and pay duty on it, there disposed of. It
was doubtful how much loss was sustained by the sale. But
according to the master's protest, made at Halifax, he intended
to proceed to a port in the United States, instead of paying
duty and selling the cargo at Halifax, and the umpire under the
circumstances made the award above stated, which was about
the amount of the duties. The claim was the subject of much
diplomatic correspondence, beginning in 1829, and the British
Government agreed to pay any loss sustained by reason of the
act of the collector, but on examining the particulars refused
to pay anything, on the ground that no loss was suffered.
"On the 12th day of September 1855 the
^'*^li^^I'^'^" ^^^^® ®^^P William Lee, of 310 tons, was lying
in the port of Tumbez [Peru] and ready to
proceed on a whaling cruise. The captain of the ship, Lo-
renzo Gruninger, having obtained the papers necessary from
the custom-house and from the governor, proceeded to the
office of the captain of the port for the purpose of procuring
his clearance. That officer, Don Cristobal Colona, refused
to clear the ship, on the ground that the captain of the same
owed a sum of money to two sailors and to a person from
Ecuador, whose names were not given. Captain Gruninger
proved that he had paid all just demands against him, but of-
fered security in §10,000 that he would satisfy all lawful claims
against him.
"Notwithstanding this, the captain of the port persisted in
refusing the clearance, nor would he give to Captain Gruninger
a passport to go to Lima. It was not until the 22d of December
of the same year that the captain of the port gave the proper
clearance of the ship.
"The Williani Lee suffered great damage in its hull and
masts and rigginij during the three months it was forced to
remain in Tumbez, and as experts declared that the necessary
repairs could not be made at sea, the captain was compelled
to take his ship to Paita for repairs, where he expended $4,000
in making the same.
"The whaling season being over, and it also being found
impossible to procure a suitable crew in Paita, Captain Gru-
ninger departed with his ship tor the United Slates. The
3406 INTERNATIONAL ARBITRATIONS.
owners of the William Lee made a claim upon the Peruvian
Government through the Government of the United States for
$07,514.29 as damages in consequence of the detention of the
ship.
^'ITpon examining the claim, the United States Government
reduced it to $32,424.54, and on the 22nd March 1858 instructed
its minister in Lima, the Hon. J. Bandolph Clay, to present to
the Peruvian Government a claim for that amount.
"The Peruvian Government replied on the 19th January
1860 stating that the owners of the William Lee and its cargo
were entitled to damages, but could not agree to the amount
claimed by the United States. The case continued in this
state till the negotiation and ratification of the convention of
12th January 1863, between the two governments for the settle-
ment of claims, when two commissioners were appointed by
each government to adjust the claims between the citizens of
the two governments.
"That commissi<m in session in Lima, having given audience
to the agents of the two governments for the presentation of
arguments in the case, came to the following determination:
"That there is no positive proof furnished in support of any
of the items presented with this claim. The principal ele-
ment of damage is based upon the loss of the whaling season
during the detention of the ship, but this item is sustained only
by presumptive evidence, namely, the declaration of the ten
shipmasters in the whaling service, as to the probable catch of
such a ship as the William Lee at that season on the 'olf shore
ground.' This is stated at 800 to 1,200 barrels. But, on the
other hand, it is evident from the papers presented in evidence
on behalf of the claimant in support of a diflterent point,
namely, the illegality of his detention, that during the eight
een months of the cruise actually preceding the detention of
the William Lee, as well as during the anterior period she had
been at sea, her catch was only 730 barrels of oil. The com-
missioners think this a much more reasonable and equitable
as well as a much more tangible measure of damage than the
opinion of the shipmasters. There is no proof found in respect
to the whole sum of $2,671.11 for notarial, consular, and other
fees and expenses alleged to have been incurred in consequence
of the detention of the ship. The Government of Peru has
already admitted in their correspondence with Mr. Clay, their
liability for the sum of $4,000 incurred in repairing the ship at
REVENUE CASES. 3407
Paita, according to the report of the board of survey. In-
clading, then^ in the <tetermination of damages the loss of the
whaling season to the William Lee, the $4,000 for repairs, $1,500
for all expenses during detention, and interest on all losses
from the release of the ship in December 1855, at the rate of 6
per cent per annum, the commissioners award to the owners
of the whale ship William Lee twenty-two thousand dollars
($22,000) in the current money of Peru, or its equivalent in
the current money of the United States."
Opinion of the commission nndcr the convention between the United
States and Peru of January 12, nm.
CHAPTER LXIL
FOKOED LOANS.
"The board, having duly considered the
Duooing's Caie. case of Theodore Ducoing, for a forced loan
exacted from Inm in the months of September
and November 183G by the Mexican Government, ftnd that the
amount levied upon him was $1,000. But in the enforcement
of it he complains that money and property to the value of
$2,000 were taken from him by the Mexican authorities. This
complaint he has, we think, satisfactorily verified by proof.
The commissioners are therefore of the opinion that the Mex-
ican Government is justly indebted to him in the sum of $2,000;
and they do unanimously award, decree, and decide that the
Mexican Government shall pay to the said Theodore Ducoing,
the claimant, the sum of $2,450, being the $2,000 aforesaid,
with the interest included, at the rate of 5 per centum ])er
annum thereon, from the 11th day of November 1836 up to
this time."
Commission under the convention between the Ignited States and Mexico
of April 11, IKW.
In the case of John Ehlera, before the samo board, a claim was made for
$466.75, exacted by the Mexican authorities as a forced loan. The case
wiis referre<l to the nmpire, Baron Roenne, on the question whether the
claim had, as ro(iuired by the convention, been presented to the Dejiart-
ment of 8tate or to the diplomatic agent of the United States at Mexico
prior to the signature of the convention ; and the umpire decided that it
had not been. No allowance was made. The same claim, apparently,
was presented to the commissioners under the act of Congress of March 3,
1849, and was dismissed on the ground that Ehlers was not a citizen of the
United States at the time when his claim originated.
'' It is proved in this case that the memori-
Homan's Case, alist [William Homau] and one James H. Far-
riiifijtou were copartners and doing business as
cabinetmakers in the City of Mexico in the year 183G, both
being citizens of the United States. In the month of October
3409
3410 INTERNATIONAL ARBITRATIONS.
of that year a forced loan was ordered to be made by the Mexi-
can Government, to which citizens of the United States, as
well as other residents of Mexico, were required to subscribe.
The amount assessed upon said company was $100. The com-
pany protested afi^ainst this exaction and refused to pay it;
and in couse<iuence their pro[)erty of the value of $220 was
seized and sold at auction to raise the required amount. The *
board is of opinion that this constitutes a valid claim against
the Government of Mexico, but it does not appear that the
memorialist is entitled to more than a moiety of the amount.
The copartner is equally entitled, and may hereafter prefer a
claim for his share of the indemnity.''
opinion of Messrs. Evans, Smith, and Paine, commissioners, January 22,
1850, ander the act of Congress of March 3, 18*19. The commissioners sub-
sequently awarded $187.75 — $110 principal, $77.75 interest.
" It is clearly proved by the evidence in sup-
HoWnflon's Case, port of the claim in this case that the memo-
rialist [John A. Bobinson], who is a citizen of
the United States, was residing at Guaynias, at the outbreak
of the late war with Mexico, and was consul of the United
States for that port. He was required to remove to the dis-
tance of twenty leagues from the coast about the 1st of Octo-
ber 1846, and accordingly took up his residence at Hennosville,
where he remained until May 1848. The supreme government
of Mexico, on the 17th of June 1847, issued a decree for a
forced loan of $1,000,000 for the purpose of carrying on the
war against the United States. The proportion of this loan
assessed upon the claimant was $600, which sum he was com-
l)elled to pay, but against which he entered his protest. In
the opinion of the board the Mexican Government had no right
to require the payment of this sum or any sum of the memo-
rialist, and it therefore decides that the claim is valid, and
allows it a(!Cordingly.''
Opinion of Messrs. Evans, Smith, and Paine, commissioners, January 7,
1851, under the act of March 3, 1849.
A. B. Thompson and John C. Jones presented a chiim ff»r $2,843.50, the
amount of a forced loan made in California in IKM], by order of the gov-
ernment, from funds of the claimants. The claim was subsequently recog-
nized by the Mexican Gtivernment, and was allowed by the conmiissioners.
A claim of Sanforth Kidder for a 'Mbrced loan ' made in January 1836 to
the commissary departm(>nt, as proved hy the original certiticate given
to the claimant by the connuissary-general, was also allowed. In the case
of Benjamin Lovell, a claim for a forced loan was rcje<ted fur want of
evidence. In the case of William S. Parrott, which was before the mixed
FORCED LOANS. 3411
commission ander the convention of 1839, a claim was made for $1,000, the
amonnt of a forced loan exacted by the Mexican Government in 1836.
The commissioners under the act of 1849 said : '^ This item was allowed by
the Mexican members of the mixed commission to be valid. The board
therefore decide that this item of the claim is valid, and it is allowed
accordingly."
Moses Moke (No. 342, Am. docket) made a
Koke^s Case. claim before the mixed commission under the
convention of July 4, 1868, for $1,000, exacted
as a "forced loan^ December 21, 1864, $500 as damages for a
day's imprisonment to which he was subjected "to force the
loan," and $300 exacted at a "forced loan" April 2, 1865. He
also claimed interest on each of the "loans." Mr. Wadsworth,
on August 16, 1871, delivering the opinion of the commission,
said:
"The forced loans were illegal; the imprisonment was only
for one day, and resulted in no actual damage to claimant or
his property; but we wish to condemn the practice of forcing
loans by the military, and think an award of $500 for 24 hours'
imprisonment will be suilicient. While the calamitous circum-
stances surrounding the oflScers of the government and the
people of Mexico at the time are entitled to much considera
tion on the question of damages, nevertheless we can not too
strongly condemn this arbitrary, illegal, and unequal way of
supplying the wants of the military. If larger sums in dam-
ages, in such cases, were needed to vindicate the right of indi-
viduals to be exempt from such abuses, we would undoubtedly
feel required to give them. The loans were paid in Mexican
coin, but considering the difference in the value of the coins of
the two countries, and the exchange on New York from Mata-
moras, it will be right to award currency. We award the sum
of $2,425, and $100 as costs, etc., currency of the United
States."
MS. Op. II. 165.
After Sir Edward Thornton had succeeded
MoManiu*B Case. Dr. Lieber as umpire, and Mr. Zamacona had
become Mexican commissioner, the case of
McManus Brothers (Francis McManus et al, v. Mexico^ Xo.
348, Am. docket) came on for decision. Mr. Wadsworth, the
American commissioner, rendered (MS. Op. III. 359) the fol-
lowing opinion :
"One of the claimants has furnished us with the several
decrees under which the special contributions levied on his
firm were made. It appears from these decrees, very i)lainly,
that the contributions were either levied upon all the property
5627— VOL. 4 12
#
3412 INTERNATIONAL ARBITRATIONS.
of all the inhabitants of the republic, or upon all the cantons
of the State of Chihuahua. The levy thus being upon all
equally, is certainly lawful; and foreigners having property in
the country were equally bound with citizens to pay the con-
tribution, which was in fact only an extraordinary war tax.
Claimants are in error in supposing that as the levy was made
to resist the French invasion, they were therefore, as aliens,
exempt from the imposition. Aliens residing in the United
States during the late war were bound to pay the same taxes
as the citizens of that country, whether ordinary or extraor-
dinary. Nothing can be more Just than that aliens residing
in the country, and accumulating property there, by traffic or
otherwise, should contribute equally with all others to its
defense against its armed invader.
" It is my opinion that claimants, then, can only recover here
for the forced loans imx>osed upon them and collect,ed. These
are not only unlawful, but the government undertakes in terms
to repay the money. They are contrary to the treaty of 1831
and to right, because they are not imposed upon all the inhab-
itants of the state in same, equal, and uniform manner, and
do not profess to be taxes or contributions to the public neces-
sities, but only temporary loans, wrung out of the unhappy
wretches at the point of the bayonet. They are deplorably fre-
quent in Mexico and are wicked beyondthepower of expression,
and cast a reproach upon all engaged in levying or sustaining
them. Surely nations that submit to them are entitled to the
praise due to patience and forbearance. Claimants should
have an award for the forced loans with 12 per cent interest.
In my opinion the sums of money obtained by force are the fol-
lowing, viz: July 11, 1865, $2,000; August 4, 1865, $1,000;
March 28, 1866, $1,000; July 17, 1866, $1,000; August 1, 1866,
$1,000.
The loan of May 15, 1866, is subject to a credit of $539.64,
repaid. I understand the sum of $2,400 exacted of Francis
McManus to be included in the sum of $6,000, which the
*mint property' was com])elled to pay (see affidavit of Francis
McManus, paper No. 20) and which is embraced in another
claim pending before this commission. I can not doubt my
duty to award the foregoing sums with interest.^
Mr. Zamacona (MS. Op. III. 361) said :
**Upon a close examination it [the claim] appears to consist
of various elements — pecuniary loans made at times to the
government of the State and at others to the government of the
republic; at times in the nature of taxes, at others as forced
loans; some in their own name and some in the name of other
people. It is perceivable from this that some of the allega-
tions, as, for example, the payment of general taxes, can not
be the subject of a claim.
**But even taking the grounds of the claim altogether, there
are other principles which, taken in connection with the cir-
cumstances of the case, do not permit the claimants' preten-
FORCED LOANS. 3413
sions to be admitted. Foreigners, with regard to their local
property, are subject to the laws of the country where they
may reside. The acts of the authorities are presumably in
accordance with the laws until it is proven that they are other-
wise. A diplomatic claim may be made when the claimant
has been the victim of a palpable injustice when making use of
his ordinary or usual remedies. When he fails to make use of
such as are furnished him by the local laws, there is no ground
for complaint. Now, with reference to the pecuniary payments
such as those alleged to have been made by the claimants, and
with regard to such as from their nature demand repayment,
recent provisions of the Mexican legislation show no intention
on the part of the public authorities to ignore such, but on the
contrary a desire to facilitate and methodize the exercise of
such a right. The holders of claims contracted during the last
war for which the government is responsible have been con-
voked ; an institution has been established for the examination
of their vouchers; the time granted for their presentation has
been extended several times, with a prospect that payment
would follow an adjustment according to its means. Such
creditors as have not responded to the call can complain of no
injustice. Their ground of complaint would arise when, upon
making use of the legal remedy, they should meet with any
palpable act of injustice either in their adjustment or payment.
'*The difficulties of discussing questions such as the present
before our commission and not before the board of audit estab-
lished in Mexico can be seen in the present case. The com-
mission, as it is easy to observe by Order Ko. 10, is even em-
barrassed for the want of legal data, and as to the facts which
the board of audit of the '' Contaduria Mayor Mexicana " abun-
dantly possesses. ♦ ♦ ♦ If our commission should attempt
to disentangle and classify the heterogeneous mass of claims
embraced in this expediente in addition to admitting a prema-
ture claim and assuming powers which belong to a domestic
institution, it would expose itself to err for the want of means
of investigating which are not within its reach. I should here
repeat the considerations upon this same subject stated in my
opinion of this date in case, Nc. 101, of Patrick Francis Eyder;
I refer to them and hope that the umi)ire of the commission
will take them into consideration. My opinion, therefore, is
that, leaving the claimants' rights intact, to be made use of by
them in the ordinary way, the claim in its diplomatic char-
acter be dismissed."
After these oi)inions were delivered Mr.
^^'^"^^ ® ' Ashton, the aaent and counsel of the United
States, in a i)rinted argument before the um-
pire in Francis Rohv v. Mcjrico^ No. .'U4, maintained:
1. That great weight should be given to the fact that claims
on account of forced loans were allowed by the commission
i
3414 INTERNATIONAL ARBITRATIONS.
ander the convention of April 11, 1839, the Mexican commis-
sioners coucurriug with the American in the awards, and by
the commissioners under the act of Congress of March 3, 1849.
The forced loans allowed by those commissions "would appear
to have been levied," said Mr. Ash ton, ** without discrimina-
tion, upon Mexicans and Americans alike, in the particular
localities."
2. That while there was no '^ special clause" in the treaty of
1831 '*in reference to forced loans nominatim^^'^ such loans
came within the eighth article "upon a proper interpretation
of it." If, said Mr. Ashtou, money did not come within the
literal signification of the word "effects" in that article, that
word should be "extended by construction" so as to include
it. (Vattel, Book II. Ch. XVII. sec. 290; Grotius, Book II.
Ch. XVI. sec. 25; 2 Phillimore, 98 ; 2 Austin on Jurisprudence,
1025.) While private property might be taken for public use,
comi>ensation should bemade to theindividualowner. (Grotius,
Book VIII. Ch. XIV. sec. 7; Pufendorf, Book VIII. Ch. V.
sec. 7; Bynkershoek, Quaest. Jur. Pub. Book II. Ch. XV.;
2 Johns. Ch. 165; Conajl:. of Mexico, 1857, lit. I. Art. 27;
Blackstone's Comm. 139; Grant v. U, *S., 1 Ct. of Claims, 50.)
But it was unnecessary to resort to extensive interpretation.
All kinds of personal i)roperty were comprehended by the
"natural signifi<».ation" of the eighth article. The word "ef-
fects" had been held in a will to be equivalent to property or
worldly auhstance, {Hogan v. Jacksonj 1 Cowper, 304; Hearne
V. Wiggington^ 2 Maddock's, Ch. 120; Campbell v. Prescottj 16
Ves. 499.)
3. That if money was within the eighth article, the govern-
ment, when it appropriated money, became "immediately and
absolutely liable " to repay it, and the individual might bring an
action to recover it without a prior "express demand or applica*
tion for repayment." (8 Johns. lle\). 374; 5 Cowen, 516; 13
Peters, 130; 12 Geo. IV. c. 78; Grant v. V. S., 1 Ct. of CI. 50;
JohnaonY. U. IS.^ 2 id. 415; U. S. v. Klein, 13 Wall. 130; Smoot's
Case, 15 Wall. 15; U. S. v. O'Keefv, 11 Wall. 179.)
4. That if forced loans were not within the eighth article,
the Mexican Government would be liable for their repayment
"under the settled principles of universal law applicable" to
" the exercise of the right of eminent domain." (Sinneckaon v.
Jo1nimn,2 Harrison (N. J.), 129; Gardner \, Village of Newbnrgh,
2 Johns, ch. 105; Mitchell v. Harmony, 13 Howard, 134.)
FORCED LOANS. 3415
5. That a "forced loan" wiis " a taking of money for public
use in the exercise of the right of eminent domain, and not in
the exercise of the power of taxation, (Cooley, Constit. Lim.
527, note; G Crauch, 145.) Even if the treaty of 1831 were
construed, as it was understood that the umpire had construed
it, as guaranteeing against a discrimination in the matter of
forced loans as between citizens and foreigners, this fact would
not release the state from the obligation to repay where no
such discrimination was made. If this view was correct, it was
unnecessary to consider whether the words " charges or con-
tributions or taxes" in the ninth article of the treaty of 1831
included " forced loans." The words " charges or contribu-
tions" should, however, be construed as describing such as
were "levied under the power of taxation, and not under the
right of eminent domain." (26 111. 357; 12 111. 406; 10 Wis.
242; 4 N. Y. 419; 3 Scam. 111. 130; 29 111. 494.)
The umpire, Sir Edward Thornton, Novem-
Award of the Umpire, bcr 26, 1874, delivered (MS. Op. IV. 178) the
following opinion :
" The case of McManu^ Brothers v. Mexico^ No. 348, involves
two claims, one for what are called in the memorial * involun-
tary' contributions, and the other for forced loans, levied upon
the claimants by Mexican authorities. With regard to the
first of these the two commissioners appear to be agreed that
the claimants are not entitled to compensation, and no obser-
vations are therefore needed from the umpire.
" The second question is whether forced loans could properly
be exacted from citizens of the United States by the Mexican
authorities. The i)rincii)al argument of the claimant is that
treaty stipulations between the United States and Mexico
exempt them from the payment of forced loans. Tlie umpire,
after examination of the treaties between the two countries,
can find no mention of forced loans and no stipulation which
accords or implies the exemption of tJnited States citizens
from their payment.
''Article VIII. of the treaty of 1831 stipulates that the 'citi-
zens of neither of the contracting ])arties shall be liable to any
embargo.' This can not imi)ly the nonpayment of forced loans;
and further, ' nor shall their vessels, cargoes, merchandise, or
ett'ects be detained for any military expedition, nor for any
public or private purpose whatsoever, without corresponding
compensation.' If it were possible to imagine that ' the deten-
tion of eflects' implied the payment of forced loans, these
cx>uld not be exacted without corresponding compensation.
But the compensation could only be either the immediate
return of the money, which would be absurd, or its rei)ayment
3416 INTERNATIONAL ARBITRATIONS.
at some future date. Now, there is no evidence tbat the claim-
ants ever made any application to the Mexican (xovernment
or were refused repayment. The defensive evidence asserts that
those who applied were repaid, and the claimants do not rebut
this assertion.
"Article IX. of the same treaty stipulates that 'the citizens
of both countries, respectively, shall be exempt from com-
pulsory service in the army or navy ; nor shall they be sub-
jected to any other charges, or contributions, or taxes, than
such as are paid by the citizens of the States in which they
reside.' Forced loans may well be included in * charges, or
contributions, or taxes,' and the clear inference is that if the
citizens of the State were subjected to forced loans, hard and
impolitic as they might be, citizens of the United States were
not exempt from them.
"For it appears by the evidence, and the claimants do not
deny, that these forced loans were distributed amongst the
whole of the inhabitants, whether native or foreign, of the
republic or of the particular State.
" In the treaties, then, between Mexico and the United States,
there seems to be no mention of forced loans. But in certain
treaties made by the former with some other nations there is
a stipulation with regard to them. If, however, this stiinilation
implies an exemption from their payment, it is a (qualified ex-
emption. In the treaty with (xreat Britain it is stipulated that
*no forced loans shall be levied upon them,' whilst the Spanish
version is that 'no forced loans shall be levied specially upon
them.' A stipulation precisely similar to the treaty with
Great Britain is to be found in the treaties with the Nether-
lands, Denmark, Chile, Peru, l*russia, the Hanse towns, and
Austria. The umpire considers that it imi)lie8 that forced
loans may be levied upon the citizens and subjects of the con-
tracting parties, provided they be not levied especially upon
them without at the same time and in the same proportion
being levied upon all the other inhabitants of the respective
countries, whether natives or foreigners.
"The umpire also observes that the claimants made continu-
ous payment on account of forced loans for several years; yet
there is no evidence that during that time they made any repre-
sentation upon the subject to their government, or, if they did
so, that the United States (lovernment addressed any remon-
strance to the Mexi(;an Government against the exaction of
these forced h)ans; it i)0ssibly felt that the terms of its treaties
with Mexico would not justify such a remonstrance.
"The agent of the United States in his argument before the
umi)ire in the case of FtanciH Jione v. Mexico^ No. 344, has
stated that the liability of Mexico for the forced loans must be
regarded as settled by the old i)recedents of decision in this
commission, and, ns he thinks, by the case of Geo, Pen John
son V. Mexico^ No. .TiT. With regard to his own oi)inion in
FORCED LOANS. 3417
that case, the umpire must be allowed to observe that he ex-
pressed uone as to the right of the Mexicau authorities to im-
IK)se forced loans upon United States citizens. He did not
enter into that question, because in that case he found that
there was not sufficient proof that the * forced loans' were actu-
ally paid, or if so paid, that they were not refunded afterward.
*'In the memorial in the case now before the umpire, it is
stated that one of the claimants, (leorge L. McManus, was
arrested and imprisoned because he refused to pay a forced
loan. The umpire does not consider that this is the proper
way of enforcing the payment of any tax, and it might have
entitled the claimant to compensation, but of this fact there is
no evidence but that of the claimant, which the umpire does
not consider sufficient.
"The umpire is therefore of opinion that in the case of
McManus Brothers v. Mexko, No. 348, the claim on account
of forced loans and of the arrest and imprisonment of G. W.
McManus must be disallowed."
After the foregoing decision was made, the
Caaeof Bom: Opinion question was reargued by the commissioners in
of Mr. Wadfworth. the case of Francis Rose, No. 344, in which Mr.
Wadsworth delivered an extended opinion.
Mr. Wadsworth began by saying that "on several occasions
the money of claimant [Rose] was forced from him for public
use; that on one occasion he was imprisoned and treated
badly until he procured his release by paying $500 as a loan
to the government;" and that the commission had "never
doubted its power or its duty to award the return of the money
thus taken by force for the public use, with interest, until the
third commissioner nominated by Mexico to the board raised
the objection." Mr. Wadsworth here referred to the cases of
Moses Moke, No. 342; Robert Wiilfing, No. 345; Rudolph
Dressel, No. 450; Starr & Merritt, No. 51G, and D. D. Brainard
& Co., No. 672. These " decisions by the commissioners " were,
said Mr. Wadsworth, " approved by the umpire, Dr. Lieber,
in Miller v. Mexico.'''' In making them the commissioners fol-
lowed the precedents under the convention of 1839 and the act
of 1849, and thus the matter stood till the umpire's decision in
the case of McManus. Continuing, Mr. Wadsworth said:^
• The case here referred to by Mr. Wadsworth was that of Rafael M.
Miller v. Mexico, No. 490, Am. docket, MS. Op. 1. 59i). Dr. Lieber awarded
August 2, 1871, $14,649 United States gold and $100 United States cur-
rency, stating the case thus :
"Rafael M. Miller, a native citizen of the United States, settled tempo-
rarily at Matamoras, Mexico, as a merchant. In 1866 the Mexican troops
r
3418 INTERNATIONAL ARBITRATIONS.
"As well as I understand the grounds of that decision, it is
based on the consideration that no demand for compensation
had been made on the government by claimant before bring-
ing his claim here. ♦ ♦ ♦ This is a matter of grave impor-
tance, and I would not willingly misunderstand it. ♦ ♦ ♦
If a demand mnst be made upon the government for a return
of the property or for compensation before this commission
can t^ke jurisdiction of such cases, ♦ * ♦ it will practi-
cally dismiss a large proportion of the claims on our dockets.
I am resting this on the conclusion that no distinction can be
drawn between claims here for money taken by force and other
property impressed for the public use. ♦ * ♦ Heretofore
in granting awards for money taken by force as a loan (a loan
to which the consent of the owner is never asked), the com-
mission had been in the habit of awarding the money and
interest without regard to the faet of demand or no demand,
before presenting the claim to our notice. In none of the cases
was any such demand shown. Similarly, in regard to claims
made for other kinds of property taken by force for the public
use, the commissioners have never required that a previous
demand or request for payment should have been made and
proved. In no such case has either of our umpires required
that such previous request for return or payment should be
shown. ♦ ♦ ♦ In point of fiict, by the convention the gov-
ernments have waived any presentation of claims to them, and
sent them all here for investigation and decision. Accord-
ingly it will be seen that the Mexican Government (in cases
already familiar to the umpire and commission) has referred
claimants here who were knocking there for admission. * * ♦
"But when and where was the victim of a forced loan to
apply for his money f He was surely willing to take it. There
is in point of fact no system in Mexico pursued in the forcible
seizure of money or in returning it. It is a proceeding not
regulated by law. It rests in the arbitrary discretion of a
military chief, with hungry, unpaid troops under his command.
nnder the command of Colonel or General Canales, having made himself
governor of the State of Tamanlipas, and in a groat civil and military con-
fusion; * a forced loan' (as it is almost ironically called in the terminology
of ahsolntism, whether this be monarchical or democratic or of any other
chtiracter) — a forced loan was raised, present! n«j: itself in the shape of a
pillage, in which Miller lost a certain amount of merchandise, for which
he now claims a snm of money eqnal in value to the ]>r(>perty lost."
To this claim, said Dr. Liehcr, it was objected (1) that Miller was domi-
ciled in Mexico, (2) that ho sutlered by the '' fortunes of war," and (3)
that *' the oflicer who cxact(Hl the * forced loan ' or pillaged the town of
Matamoras was no Mexican authority." He held (I) that the question of
donii<'il was not material, (2) that the case did not dei)end upon the *'for-
tnnes of war,' and (3) that the government was responsible for the acts of
Canales as a Mexican authority.
FORCED LOANS. 3419
The prestamo is a pestilence to trade and industry which
breaks out sometimes in a city, sometimes in a district, and is
never laid on the whole country. * * *
" Promises of repayment are profuse, but no time is fixed, no
place is fixed, and years go by, a lifetime, without any effort
at compensation on the part of the authorities. * * »
"It is possible that I may misconceive the point in the um-
pire's decision in the McManus case. He there decides that
these forced loans are legal indeed, but I do not understand by
that that it is intended to decide that the authorities are not
bound to return the money Moaned' at the point of the bayo-
net, or from behind the bars of a very dirty prison. This does
not follow. The forcible seizure of horses, wagons, provisions,
etc., for public use, is just as legal as the forcible seizure of
money, and in such cases the umpire awards indemnity. He
awards for the taking of real estate by the troops for a barrack ;
yet the right of the sovereign to appropriate real estate to
public use can not be doubted ; it is one of the most usual cases
of exercise of the right of eminent domain ; it is legal. It
should be regulated by law, and it is so regulated in every
country where there is any respect for law. But it is no mase
legal to take money by force than land, even where by his
mere pleasure some chief vests in himself 'ample faculties.'
In all these cases of the legal exercise of the right of forcible
seizure of private property for public use, there is a legal and
moral duty to make compensation. * * *
''Admitting the premises, then (for the sake of argument,
however), that loans of money obtained by force are legal, is
not the injured party entitled to indemnity? Undoubtedly.
Why need we inquire whether the forced loan is a tax, ordinary
or extraordinary, when the authorities take the money under
a promise to return it and give a voucher to this effect and
admit the obligation to do sol It has none of the features of
a tax or contribution (which is an extraordinary tax), * ♦ »
levied upon all the inliabitants and for which no other compen-
sation is promised or given than the blessing of a good gov-
ernment. A tax is always known by these features, uniformity
in its operation upon the inhabitants, and the absence of any
promise or duty to make compensation in money to the tax-
payer. Hundreds of times the judges in civilized and free
countries have decided that unless the levy is uniform, it is a
taking of private property for public use, and that comi)ensa-
tion must be made. Even in Mexico the law is sound enough.
The constitution of 1857, article 27, forbids the taking of private
property for public use without com])eusati()n. The treaty of
1831 between the United States and Mexico is to the same effect
(article 8). It won't do to argue that the word ' property ' in the
Mexican constitution and the word 'effects' in the treaty do not
embrace money, and that thereibre the government has a right
to take all the money it i)leases without responsibility. * * *
r
3420 INTERNATIONAL ARBITRATIONS.
'•Forced loaDS, unknown in all well-governed countries, are
of frequent occurrence in Mexico. They multiply in modern
times. The commissioners of 1839 and 1848 had but few cases
before them, compared with this commission, although the
period of their investigation covered a longer time. The fact
does not encourage us to hope for an abatement of a practice
so scandalous and so wicked. I have no sympathy with it.
The money is only taken to feed perpetual riots and increase
the flow of blood. Not a solitary benefit to the unhappy peo-
ple results from this waste of treasure, and I shall do what I
can in the exercise of my functions to restrain the evil.
'*This man was put in prison and treated shamefully to
compel him to surrender the loan. It will be difficult, by any
process of reasoning known to me, to prove that the govern-
ment authorities had no right to use force to compel the loan
of the money, if they had a legal right to force a loan. And
if they had a legal right to force a loan, they had the right to
employ enough force to make the rebellious foreigner bring out
his money bag. I can't deny that. * * » if he will not
give up the money which is legally demanded of him, why may
they not (the authorities demanding) shoot him if it becomes
necessary to enforce compliance! Is a whole army to starve
or disband because the persons ordered legally to pay out the
needful funds refuse to do itf 1 see no way to limit the
emi)loyment of force, in forcing a legal loan, but the measure —
no more than is necessary. Well, this stubborn chiimant would
not pay, do what ill thing they might to him, until they put
him in prison and gave him so many minutes in which to pay
or be shot. In my humble judgment that is good law in cases
of forced loans. * * *
'* I regret that the commission should decide the same ques-
tion in two contrary ways, because both can't be right, and I
hope that such a result may be avoided. T am still of opinion
that wo fell into an error in adopting 0 per cent as a proper
rate of interest for money borrowed by force. It ofters an
inducement to weak and disorderly governments to resort to
such disreputable means to live, rather than to rely upon a
credit cherished by good faith and punctuality, and fed by the
perennial stream of national order and industry. Mexico can't
borrow money in the market at 12 i)er cent. It is also a com-
mon rate of interest there for money, and the claimant from
whom the authorities took it by violence and imprisonment
could have loaned it at that rate. For reasons of this nature
I think the interest should be 12 per cent."
Mr. Zamacona said :
Opinion of Mr. Zama-
cona. '* ^^^^ interlocutory question in this case, as
to the claimant's citizenship, having been
settled, the time has arrived for considering the claim on its
merits. The difference of opinion between the United States
commissioners and the undersigned concerning the responsi-
FORCED LOANS. 3421
bility (international) of the Mexican Government for the im-
I)osition of foved loans became apparent at the time of the
diflFerence of tlieir opinions as to the preliminary question of
citizenship. Fortunately, however, it is not necessary to re-
vive the question in the present case or in any other, it having
been finally decided in the case of McManus, No. 348, by the
umpire. We may therefore accept it as legally settled in mat-
ters of this nature that the Mexican Government did not vio-
late her own laws nor her treaty obligations with the United
States by imposing forced loans on the citizens of the United
States."
Mr. Zamacona then reviewed the evidence in the case, con-
cluding that the claim did not '* possess those features of truth
about it which would be necessary in order to decide that it is
a good claim upon the strength of the evidence on which it
rests."
Sir Edward Thornton, September 13, 1875,
lTmpi»»s Dedrion. rendered (MS. Op. VII. 418) the following
decision :
'* With regard to the case ot* Francis Rose v. Mexico j No. 344,
as the question of forced loans has been so earnestly discussed
the umpire thinks it right to make some further observations.
But he can not see that there is any force in the argument that
his predecessor has given different decisions upon such (ptes-
tions. He regrets that it should be so, but if these matters
are to be settled entirely by such precedents the umpire does
not understand why, where there has been a decision upon the
matter by a previous umpire, the question should be referred
to the present umpire at all. It can only be with the intention
that he should express his unbiased opinion upon the matter.
*'The umpire has already expressed his opinion in other
cases that United States citizens residing in Mexico are not
by treaty exempt from forced loans. This oi)inion he main-
tains. But he must explain his understanding of a forced loan.
A forced loan is a loan levied in accordance with law. It is
equally distributed amongst all the inhabitants of the country,
whether natives or foreigners. It is a tax which becomes
smaller or greater according as it is repaid sooner or later, par-
tially or not at all. If the foreigner is reimbursed at the same
time as the native, or if neither of them are reimbursed at all,
the foreigner has no ground for remonstrance. As long as the
foreigner is placed upon the same footing as the native he can
not complain. But if there be unfairness in the distributing
of the loan or in its repayment, and if any ])refereuce be shown
to the native, the foreigner has good ground tor complaint. A
forced loan equitably proportioned amongst all the inhabitants
is a very different thing from the seizure of property from a
particular individual.
3422 INTERNATIONAL ARBITRATIONS.
<< In the cat^e now under consideration it is not shown that
there was any partiality shown against the claimant or that
Mexicans were not in as bad a position as himself. Indeed,
although witnesses alleged that the claimant was made to pay
a forced loan of $550, no receipt is shown for that amount, and
there is no proof that he was not reimbursed.
" With regard to the other sums which are stated to have
been exacted as forced loans, and for a portion of which re-
ceipts are shown, no proof is even given that they were really
forced loans, the receipts themselves purporting that the money
was freely given.
" But the mode employed by the authorities of enforcing the
payment of the forced loan of $5*50 the umpire does not think
justifiable. If the forced loan was legally imposed, there must
have been means of enforcing its payment by judicial proceed-
ings, and the arrest and subseiiuent detention of the claimant,
though it is not proved that the latter was of long duration,
and the menaces to which he was subjected, were not justifi-
able and entitled him, in the opinion of the umpire, to some
small compensation.
" The umpire therefore awards that there be paid by the
Mexican Government on account of the above claim the sum
of five hundred Mexican gold dollars ($500)."
In the case of George L. McManus v. Mexico j No. 488, it ap-
peared that the claimant was arrested and imprisoned on the
night of August 4, 1865, at Chihuahua for failure to pay a
forced loan of $1,000 levied on the firm of McManus Brothers,
of which he was a member, in aid of the constitutional gov-
ernment of Mexico, whose chief executive, Jaurez, was at the
time in Chihuahua with his cabinet. Claimant, after a few
hours' detention, was released by order of Seilor Lerdo de
Tejada, then secretary for foreign affairs, on condition that
one Creel, who had offered himself as surety, should make
himself responsible for McManus's appearance to answer the
demand for the loan. In this case, as in that of Rose, Sir
Edward Thornton allowed $600, without interest (the claimant
asked $50,000), for the arrest and imprisonment. He made the
same allowance for about a day's imprisonment in the case of
Bartolo Hicks v. Mexico^ No. 487.
"The umpire has frequently expressed his
Cole's Caae. opinion that United States citizens in Mexico
are not exempt from forced loans, where these
are universally and impartially imposed and levied both upon
natives and foreigners. In this case it is proved by the evi-
dence of the claimant's witnesses that they were universal,
FORCED LOANS. 3423
and it is not shown that any partiality was exercised as against
the claimant."
Thornton, umpire, July 15, 1876, John Cole v. MexicOf No. 948, Am. docket,
convention of July 4, 18G8, 6 MS. Op. 497. S. P,j Thornton, umpire, Rudolph
Brack V. Mexico^ No. 462, Am. docket, convention of July 4, 1868, 7 MS. Op.
455; Francis Nolan v. Mexico j No. 337, Am. docket, 7 MS. Op. 411; Patrick
F. Ryder v. MexicOj No. 101, Am. Docket, MS. Op. VII. 365. In the case of
James P, Hickman v. Mexico^ No. 545, Am. docket, Mr. Wads worth, de-
livering the opinion of the commissioners (MS. Op. V. 21) said: '^ All the
items of the claimant's demand are extrordinary but general taxes. They
are not individual levies, but were shared by the whole State in a fixed
proportion. They do not constitute 'wrongs' within the seune of oar
convention, and the claim is accordingly dismissed.'' In the case of
Julian Paladoa v. MexicOy No. 444, Am. docket, Sir Edward Thornton (MS.
Op. VII. 444) said: ** In this case it appears from the tenor of the receipts
that the sums paid by the claimant were really for forced loans, and each
of the receipts conveys that the sum therein stated was the claimant's
share of the loan, showing that it was also levied upon the other inhab-
itants of Montemorelos. The umpire therefore awards that the above-
mentioned claim be dismissed." In the case of Manuel /. de la Veya v.
Mexico, No. 746, Sir Edward Thornton, in the course of his opinion (MS.
Op. IV. 621), said : '' He [the umpire] does not consider that this [forced
loan] is a matter with regard to which the commission has power to
order compensation ; although the right of the claimant to ask from the
Mexican Goveniment reimbursement of forced loans is not prejudiced on
that account." In this case it was contended that the claimant had a
remedy before the commission appointed by the Mexican Oovemmeni to
consider such cases. Mr. Wjidsworth referred to the fact that it was
decided by Dr. Lieber, umpire, in Manassee cf Co. v. MexicOy No. 432 (MS.
Op. II. 485), that this Mexican tribunal, organized under a law of Novem-
ber 19, 1867, was no bar to the jurisdiction of the commission. Sir
Edward Thornton did not take up the jjoint, but in Heirs of John Young
V. Mexico, No. 59 (MS. Op. \Y . 618), he intimated that such claims must
be presented to the Mexican tribunal. In the case of John 1). Pradel v.
Mexico, No. 813, in which a claim was made on account of forced <'outri-
bations of various supplies taken by the republican army from March to
June 1867, during its siege of the City of Mexico, Sir Edward Thornton
observed, in dismissing the claim, that there was no proof that the claim-
ant availed himself of his right to present his claim to the Mexican (Gov-
ernment, or that if he did so he was refused payment. It could not be
maintained that an injury had been d<mc to the claimant until the Mexi-
can Government had been made aware of the debt and refused to cancel
it. In the present case, continued Sir Edward Thornton, there could be
no excuse for the failure, since the claimant lived almost at the gates of
the City of Mexico, and might have presented his claim in person. If he
had lived in a remote part of the country, distant from any authorities
to whom an appeal could be made, tht^re might be some excuse for his
omission; but in fact he was perfectly conversant with the language, was
married to a Mexican woman, and had resided in the country for many
yeais.
r
3424 INTERNATIONAL ARBITRATIONS.
" It further appears that in April 1867 Colo-
Weil's Case. uel Oonrecx) called upon the claimant to pay a
forced loan of $200, and that, on his neglecting
to pay this sum, he was imprisoned for two days and was com-
pelled to pay not only the loan but a line of $250. The umpire
is of opinion that the plea of the claimant that he was not
liable to the loan because he was not resident in the district,
but was merely x>assing through, was a just one and that the
levying of the loan was illegal. The fine was therefore anjas-
tiiiable, and still more so was the imprisonment. * * * He
therefore awards that there be paid by the Mexican Govern-
ment on account of the above-mentioned claim the sum of two
hundred and fifty Mexican gold dollars ($250), with interest
at 6 per cent per annum from the 15th of April 1867 to the
date of the final award, and further five hundred Mexican gold
dollars ($500), without interest, as compensation for the claim-
ant's imprisonment."
Thornton, iimpiro, April 8, 1S75, Leicis Weil v. Mexico, No. 792, Am,
docket, convention of July 4, 1868.
CHAPTER LXIII.
CONTRACT CLAIMS.
1. Oases under the Convention between the United
States and Mexico op April 11, 1839.
'< The undersigned, commissioners under the
CaMofthe"Heniion:" convention of the lltb of April 1839 between
AdvaaoM for the ^^^ United States and the Mexican Republic,
Aepair of a Man- '^ '
of-war. having in full board considered the case of the
brig Hermon, Chas. E. Hawkins, captain, are
of opinion that the Mexican Government is justly indebted to
Hetty Green, administratrix of Pardon 0. Green, who was a
citizen of the United States and a resident at Key West, in
the Territory of Florida, the sum of $0,053.55, advanced by the
said Green in the year 1828 to the brig Herman, a vessel of war
belonging to the Republic of Mexico, at the instance of Chas.
B. Hawkins, captain thereof, lor repairs of that vessel and for
naval stores and supplies, the said vessel having, while engaged
in a cruise against the commerce of Spain off the Island of Cuba,
put into Key West in distress, and the said Pardon C. Green
having, at the instance and solicitation of Captain Hawkins, in
faith of the Mexican Government, advanced that sum to repair
and supply her. And they do unanimously award, determine,
and decide that the Government of Mexico shall pay to the said
Hetty Green, administratrix as aforesaid, the sum of $16,941.89,
being the amount advanced by the said Pardon C. Green to
the brig Jlermon, as above stated, with interest thereon at the
rate of 6 per centum per annum (that being the legal rate of
interest in Florida at the time of the advances) from the 1st
day of July 1828 till this date.
"Given under our hands and seals this 5th day of February
1841.''
Mixed commissioD, under the convention between the United States and
Mexico, of April 11, 1839.
3425
r
3426 INTERNATIONAL ARBITRATIONS.
<^Tlie claims of tbe American citizens, resi-
CftM of Aivarei: dents of Santa Fe, coming up next in order,
Louii to Porwiu in ^^ y^^^^ upon discussion thereof, agreed by the
' board that the Government of Mexico is not
liable for said claim. Thereupon the said
board unanimously adopted a decree on said claim in the
words following, to wit:
<* The case of Manuel Alvarez and other citizens of the United
Htates, hereinafter mentioned, residents of Santa F^, in New
Mexico.
"Having duly examined the claim of ♦ ♦ * citizens of
the United States residing in Santa Fc, New Mexico, which
(;laim relates to sundry advances in money and goods which
they allege to have been made up till the year 1837 to certain
individuals, now deceased, and late in the service of the Mexi-
can Republic, and having also examined the documents exhib-
ited in jiroof thereof;
*'We, the undersigned commissioners on the part of the
United States and of Mexico, do unanimously award and de-
cide that there is nothing due in this case by the government
of said republic to the * * ♦ claimants, and that conse-
quently their claim aforesaid is rejected."
Commission under the convention between the United States and Mexico
of April 11, 1839.
In a series of cases before the mixed com-
Caset of Hunter, Bun- mission under the convention between the
can, and others. United States and Mexico of April 11, 1839,
awards were made in favor of certain persons,
citizens of the United States, who furnished various military
supplies to the Mexican Government while it was engaged in
its revolt against Spain and before its independence had been
recognized by iiny power. In these cases no question was
raised by the Mexican or the American commissioners as to
the competency of the commission to entertain such claims.
The Mexican coniniissicmers concurred in the allowance of the
claims without discussion, except so far as questions of evi-
dence gave rise to diflerences of view. The following awards
of the class in (juestion were made:
In July 181G Don Jose Manuel de Herrera, the authorized
agent of the so-called independent government of Mexico,
then engaged in an armed revolt against the Spanish crown.
CONTRACT CLAIMS. 3427
purchased at New Orleans, in Loaisiaua, from Dr. George
Hunter, 70 kegs of gunpowder at $1.25 a pound, amounting
to $2,187.50, The powder was shipped by the vendor on the
schooner jRe&ecca, a vessel which had been purchased by Senor
Herrera for the service of the Mexican Government, and was
delivered to the Mexican authorities at the port of Boquilla de
Piedra. Dr. Hunter then sought payment for the powder
from the Mexican general, Victoria, but the entire sum he ob-
tained, either from him or from Sefior Herrera, was $25. A
claim for the rest of what was due him was presented to the
mixed commission under the convention between the United
States and Mexico of April 11, 1839. The Mexican commis-
sioners did not deny the competency of the commission to
entertain the claim, but contended that there was not suffi-
cient evidence (1) of the contract with the claimant, or (2) of
the powder having been delivered to and accepted by the
Mexican authorities. On this question of evidence the umpire
decided in favor of the claimant, and awarded $5,509.94, the
amount found by the American commissioners to be due.
John Nicholson, executor of Abner L. Duncan, of Louisiana,
who, to employ the language of the commissioners, furnished
"moneys, vessels, and munitions of war" to *^ divers Mexican
patriots engaged in the years 1815, 181G, and 1817 in the
struggle of Mexico against Spain for the independence and
self-government of the former," presented a claim for $90,013.98.
The commissioners concurred in allowing it, with interest at
6 per cent, the legal rate in the State of Jjouisiana, " where the
parties lived and the advances were made."
The commissioners made a similar decision in almost the
same language in the case of Louisa Livingston, widow of
Edward Livingston, who held as assignee a claim for advances
precisely the same as that of Duncan.
So in the case of William H. Sims, also of Louisiana.
In each case the commissioners referred to the supplies as
having been furnished for "the promotion of the great object
aforesaid," viz, the independence and self-government of
Mexico.
On the same principle the commissioners made awards in
what was known as the Oliver case, which comprehended the
claims of Dennis A. Smith, amounting to $84,230.72, and of
the Mexican Company of Baltimore, amounting to $160,563.72,
6627— VOL. 4 13
3428 INTERNATIONAL ARBITRATIONS.
both claims being for arms, vessels, manitions of war, goods,
and money famished by Smith and the Mexican Company, re-
spectively, to General Mina for the service of Mexico in the
years 1816 and 1817.
An award was made in favor of James Hepbnrn and Robert
M. Welman for the equipment of the ship Cleopatra and her
sale to General Mina in 1817, certain questions of evidence
being referred to the umpire.
Thomas Tenant, Henry Didier, John Sullivan, Michael
McBlair, and John Laborde received an award for military
supplies furnished to the Mexican schooner Highflyer in 1817,
under a contract with Don Jos6 Yillejunta, a Mexican agent.
Gertain questions of evidence were referred to the umpire.
Nathan W. Wheeler and James B. Murray sold muskets in
181G to General Victoria, as the agent of the Mexican Govern-
ment. An award was made in the same manner as in the last
preceding case.
Acting in the same spu*it, the commissioners made an award
in favor of Samuel Chew for furnishiug a war vessel to the
Mexican Government in 1830, when that government, though
its independence had been acknowledged by the Fnited States
and other powers, was still in a state of war with Spain. The
record of the award in this case is as foUows:
^^The board having considered the claim of Samuel Chew, a
citizen of the Uuited States, and resident of Philadelphia, in
the State of Pennsylvauia, are of opinion that the Mexican
Government is justly indebted to the said Chew in the sum of
$11,236.82 ; that sum being a balance due to him for the cor-
vette, a vessel of war, called the Tepeyac, built in Peunsylvania
by his procurement, and at his expense, under an agreement
to that efifect between the Mexican Government and himself;
and they do hereby unanimously award and decide that the
Government of Mexico shall pay to the said Samuel Chew the
sum of $18,291.98, with interest included tbereon, at the rate
of 6 per centum per annum, that being the rate of interest in
the State of Pennsylvania, where the parties contracted, from
the 10th day of September 1830 up till this date, namely, the
2nd day of March 1841.''
This decision is followed in the record by this note:
^^And at the time of signing and sealing the above the
Mejdcan commissioners stated that they did so because they
considered the payment to be just, it not appearing that since
the 24th of February 1834, the date the last communication
addressed to Mr. Chew by the Mexican minister in the United
States, any settlement had taken place between the interested
party and the Government of Mexico."
CONTEACT CLAIMS. 3429
2. Commission under the Act of March 3, 1849.
A claim was presented to the board under
Eektod't Cam. the treaty of 1839 by the Mercantile Insurance
Company of New York against the Govern-
ment of Mexico, growing oat of a contract with Henry Eckford
for the building of the man-of-war Ouerrero for that government
in 1826. It appeared that Eckford, having completed the ves-
sel, received as security therefor the promissory note of Eugenio
Cortez for $20,000, payable in four months from April 25, 1826,
with interest; and the payment of this sum to Eckford was
also guaranteed by Seiior Don Pablo Obregon, Mexican minis-
ter in the United States. «The note, having arrived at matu-
rity, was protes|:ed for nonpayment. Subsequently various
sums were paid on the contract by authorized agents of Mex-
ico, but a considerable sum still remained due. The claim for
this sum the board refused to consider, on the ground that it
had not been the subject of reclamation by the United States
on Mexico. In 1842, however, it was, at the instance of the
Secretary of State, brought to the notice of the Mexican Gov-
ernment by the minister of the United States in Mexico, who
in 1844 reported that the claim was acknowledged by Mexico,
and that the mode of payment was to be adjusted. On these
facts the commissioners, under the act of Congress of March
3, 1849, to whom the claim, which still remained unpaid, was
presented, said:
" This claim therefore has been recognized both by the Gov-
ernment of the United States and that of Mexico as a claim
which the latter ought to pay; and this board is consequently
of the opinion and does decide that the aforesaid claim of the
Mercantile Insurance Company of the city of New York, of
which William R. Thurston is president, is a valid claim against
the Government of Mexico; and the same is allowed accord-
ingly."
William S. Parrott, a citizen of the United
Parrott't Case. States, presented to the commissioners under
the act of March 3, 1849, a claim against
Mexico for the amount of a bill of exchange drawn by Jo86
Manuel Herrera on Gen. Guadalupe Victoria on April 27, 1816,
in favor of John Delarme, for $6,000, payable three months
after date. The commissioners said:
"At the time this bill was drawn by General Herrera he was
the agent of the Mexican patriot s to obtain supplies to aid them
in their struggle for independence, and this bill, with others of
3430 INTERNATIONAL AEB1TRATI0N8.
a similar character, was giveu to cover advances which were
mside to him for the patriot cause. The Government of Mexico,
after the independence of the country was estabhshed, recog-
nized the contracts of General Uerrera as binding upon it.
The board has no dif^culty in determining that the bill of
exchange creates a valid claim against Mexico.''
In the cases of Ann B. Cox, executrix of
^^^^ ""^ Nathaniel Cox, and Calvin J. Keith, admin-
istrator of Samuel Elkins, both decedents
being merchants of New Orleans who had furnished supplies
to General Uerrera, but who had never secured the adjust-
ment of their claims by the issuance of a bill, or in any other
manner, the same commissioners said :
<^ It does not appear that Mexico, though often and strongly
pressed to pay them [the claims], ever denied her liability.
Her inability to make payment appears to be the reason why
the amount for which she should be responsible was never
adjusted with that government. ♦ * ♦ One object, and per-
haps a leading one, of the treaty of 1848, under which this
board is constituted, was to provide for the adjustment of these
claims which were submitted to the former commission, but
upon which no decision was had. It was well known to this
government that many claims of this character, for the ancient
debts of Mexico, had been allowed by the former board, and it
must therefore betaken as the deliberate purpose of both gov-
ernments, in negotiating the treaty of 1848, to provide for the
adjustment of any similar outstanding claims, and especially
of those which had been acted on by the former commission,
but had failed to receive the decision of the umpire. The prin-
ciple upon which these claims rest having been thus recognized
and established by the governments of the two countries, and
the board being satisfied by the proofs exhibited in the case
that the supx)lies were furnished and the moneys advanced by
the claimants in the manner hereinbefore stated, for the use
of Mexico, is of opinion, and does decide, that the said claims,
severally, are valid."
The reason given by the commissioners for
Meade's Case, their decision in the cases of Cox and Elkins
was elaborated by them in the case of Mar-
garet 0. Meade, executrix of Kichard W. Meade, in which a
claim was made, among other things, for commissions charged
by Meade for receiving and delivering to the Mexican Gov-
ernment certain vessels of war which were fitted out in the
United States for that government about 1825. The commis-
sioners, in an opinion of December 1*1, 1851, said:
"The vessels were sent by Meade, under the American flag,
to i)rotect them from the armed vessels of Spain, with whom
CONTRACT CLAIMS. 3431
Mexico was then at war. This was done at the request of the
Mexican Government and solely for its benefit. The expense
incurred in thus sending them out could not, with propriety,
be chargeable to Mr. Meade. The money thus paid by him
Mexico was in good faith t)ound to refund.
"An objection to this claim, however, is to be found in the fact
that the services rendered by Mr. Meade for the Mexican Gov-
ernment in thus fitting out armed vessels to be used by that
government in a contest with Spain, with whom the United
States were then at peace, was in violation of the provisions
of an act of Congress approved 20th April 1818, which declares
it a penal ofifense, punishable by fine and imprisonment, ' know-
ingly to be concerned in the furnishing, fitting out, or arming
of any ship or vessel with intent that such ship or vessel shaU
be employed in the service of any foreign prince or state, or of
any colony, district, or people with whom the United States
are at peace.' The United States could not with propriety
interpose to enforce the payment of a claim to any one of ite
citizens created by services which were rendered in violation
of its own laws. If this claim were now presented for the
decision of the board, upon the principles of national law,
without reference to the past action of the two governments,
it would be rejected without hesitation.
" The board, however, is bound to look at the several treaties
heretofore made with Mexico providing for the settlement of
claims of citizens of the United States against the Mexican
Government, and to respect the construction which the two
governments have placed upon these treaties. The convention
of 2nd February 1848, under which this is organized, provides
that 'the board shall be guided and governed by the principles
and rules of decision prescribed by the first and fifth articles of
the unratified convention, concluded at the City of Mexico on
the 20th day of November 1843.' The unratified convention
referred to was intended to provide for the settlement of 'all
claims of citizens of the United States against the government
of the Mexican Republic, which, for whatever cause, were not
submitted to, nor considered, nor finally decided by the com-
missioners, nor by the arbiter appointed by the convention of
1839.' The first article of the unratified convention required
the board therein provided for to decide the claims which should
be presented to them ' according to the proofs which shall be pre-
sented, the principles of right iind justice, the laws of nations,
and the treaties between the two republics.' In conforming to
the rules of decision thus prescribed, it is necessary to look at
the construction which has been placed upon the treaties re-
ferred to by the two governments, respectively, as well as to
their letter.
** The records of the joint commission, created by the conven-
tion of 11th of April 1831), show that several claims, involving
the same principles as those embraced in * * * Mrs.
Meade's claim, were considered and allowed by both the Ameri-
can and Mexican commissioners, as well as by the umpire, thus
3432 INTERNATIONAL ARBITRATIONS.
roceiving the deliberate sanction of every member of that com-
mission. The construction thus given to that convention has
received at least the tacit sanction of both governments.
^'Although the Government of the United States could not be
justified, under the law of nations, in interposing its authority
to enforce a claim of one of its citizens growing out of services
rendered in violation of its own laws, and its duties as a neutral
nation, yet if the nation against whom such claim exists sees
proper to waive the objection, and agrees to recognize the claim
as valid and binding against it, the tribunal to which it is re-
ferred for settlement can not assume for it a defense which it
has expressly waived.
^^If the commission contemplated in the unratified conven-
tion of 1843 had been created, it could not, under the view
taken by this board, have rejected this claim. The United
States having released the (government of Mexico and assumed
her entire liability under the principles and rules of decision
prescribed by the unratified convention, she is bound to admit
as valid any claim embraced by the rules of decision thus pre-
scribed. They therefore decide that the ♦ * ♦ claim of
Margaret C. Meade, as executrix of Bichard W. Meade, is a
valid claim against the Government of Mexico, and award
accordingly.^
^^The memorialist alleges that James John-
Zander's Cam. ston, a naturalized citizen of the United States,
<in the years 1812 and 1813 advanced goods,
arms, and money for the use of the Mexican patriots in the
district under the command of Don Jose Bernardo Gitting.'
* ♦ ♦ The supplies appear to have been furnished for the
use of the Mexican x)atriots shortly after the earliest attempts
were made to resist the authority of Spain, and before even a
provisional government had been organized by the Mexicans.
The claim differs materially from that of Duncan's heirs,
which was allowed by the mixed commission, and those of
Cox and Elkius, which have been allowed by this board.
{Supray 3430.) The supplies upon which those claims were
based were furnished by express contract with an agent duly
appointed by the leaders of the revolution, and who was sent
by them to the United States to procure aid, with a promise
that all obligations contracted by him should be ratified.
In addition to this obligation the Government of Mexico, after
the independence of the country had been fully established,
recognized and sanctioned his acts, and assumed the responsi-
bility of his contracts.
" In this case, neither the original authority of Gutierrez as
an agent of the patriots, nor a subsequent ratification of his
CONTRACT CLAIMS. 3433
contracts by the Mexican Oovernment, is shown. It is not
shown that the claim was ever presented to the Mexican Oov-
ernment, or that a right to demand payment from it has ever
been asserted before the claim was presented to this board.
The memorial alleges that ^ the claim was prepared for presen-
tation to the board of commissioners appointed by the Gov-
ernment of the United States and Mexico, ander the conven-
tion of 11th of April 1839, and was sent, bat failed to arrive
in time for the commissioners to act upon it.' No notice of the
claim appears upon the records of that commission. The
report of the American members embraces a list of all the
claims which were received too late for action; but this claim
is not foand in the list.
^^ It is not alleged in the memorial, nor is it shown by the
proofe, that Johnston was naturalized at the time that it is
alleged the supplies were furnished. This would be indispen-
sable to an award, if the claim were in other respects proved.
'< In the opinion of the board it is not a valid claim against
the Republic of Mexico, and it is accordingly disallowed.''
Case of John A, Zander : Opinion of Messrs. Evans, Smith, and Paine,
commissionerSy February 26, 1851, under the act of March 3, 1849.
" The memorialist and one William McKiuley
Underbill's Case: ^^ ^he 1st day of June 1843 were the owners of
S^t^t ^^^ b^^ ^Py^ ^^^" ^yi^^ ^^ ^^^™^. ^i^^i° *^«
territories of Mexico, under the command of
Gapt. Charles Lander. The State of Yucatan was at that time
in insurrection against Mexico, and a division of the Mexican
army was then at Lerma for the purpose of subduing the
insurgents. A contract was entered into on that day between
Captain Lander and the paymaster-general of the Mexican
army, who was authorized to do so by the general in chief,
whereby the said brig was chartered for the use of the Mexican
army, at the rate of $40 per day, for the period of 15 days.
The service stipulated was duly performed, but the amount
agreed upon was never paid. * ♦ ♦ The service was per-
formed for the Mexican Government under the express agree-
ment of its principal military commander. The board is of
opinion and decides that the claim is valid and allows the
same accordingly."
Memorial of William S. Underhill: Opinion of Messrs. Evans, Smith,
and Paine, commissioners, January 13, 1851 ; act of Congress of March 3,
1849.
3434 INTERNATIONAL ARBITRATIONS.
" Upon the deflth of Mr. Martinez, minister
xnriek'i Caie: Imm plenipotentiary from Mexico to the United
'*'^^*^*^' States, which took place ia Washington in
February 1840, all the archives, books, papers,
office frirniture, etc., belonging to the Mexican legation were
placed in the possession of Mr. Alvear, the minister of the
United States for the Argentine Confederation, by one of the
attaches of the legation. Mr. Alvear, on behalf of the Mexican
Government, rented of the claimant certain rooms in her house
for the storage and safekeeping of these articles, at the rate of
$25 per month. Under this agreement the apartments were
occupied until Mr. Almonte, the successor of Mr. Martinez,
arrived in Washington, when all the property thus kept was
delivered to him. The claimant presented her demand tor the
stipulated compensation, but it was not paid by Mr. Almonte,
he not finding it convenient to do so, or not feeling authorized
without orders from his government. Mr. Alvear testifies
that Mr. Almonte said he would forward the bill to his gov-
ernment and 'he had no doubt it would be paid.' The board
is of opinion and decides that the claim is valid and allows
the same accordingly."
Case of Hannah Ulrick: Opiuion of Mcssfb. Evans, Smith, and Paine,
commissioners, February 7, 1851, under the act of Congress of March 3,
1849.
Eichard S. Coxe, trustee of the Union Land
Case of the Union (jompany, presented to the mixed commission
Land Co.: Coloniza- •% .X y , ■, w^ . -,
tion Contracts ^nder the convention between the United
States and Mexico of April 11, 1839, a claim
against Mexico growing out of the alleged violation by that
government of certain colonization contracts entered into by
the Mexican authorities with Lorenzo de Zavala, Joseph Veh-
lein, and David G. Buniet, as emprcsarios.^ The American and
Mexican commissioners, differing upon the claim, reported to
the umpire upon it, but the latter, owing to want of time, if not
to other causes, at the close of the commission returned it unde-
cided. In a synopsis of all the claims before the commission
subsequently prepared by Mr. Brackenridge, one of the Ameri-
can commissioners, it was stated that Mr. Brackenridge drew up
the report of those commissioners to the umpire npon the claim
in question, and that he considered the measure of damages to
be "the lowest sworn estimate of the value of the laud, at the
time of the forcible interruption, without interest."
^** Empresario, * * * The person who uiidertjikcs to do or perform,
L on his own account, some biisineBS of great iiii)>ortan('e/' Velazquez.
CONTRACT CLAIMS. 3435
The claim of the Union Land Company, together with various
other claims growing out of or related to the same transaction,
was presented to Messrs. Evans, Smith, and Paine, the com-
missioners ander the act of Congress of March 3, 1849, and
among the representations submitted in behalf of the Union
Land Company were arguments prepared by Mr. Webster and
Mr. Thomas Corwin.
The claims in question all grew out of the alleged interrup-
tion by Mexico of the performance of certain contracts for the
settlement of vacant lands in Texas, which had been entered
into by Messrs. Zavala, Vehlein, and Burnet, with the State
of Coahuila and Texas, in conformity with the laws of that
State and of the republic of Mexico. The parties before the
commissioners derived their interests in the contracts by as-
signments, either direct or intermediate, from the original
empresarios; and the claims, though differing in some of their
circumstances, all had a common origin and were supported
in essential matters by the same proof. The commissioners
therefore discussed and decided them together.
The laws under which the original contracts were made were
(1) the colonization law of Mexico of August 18, 1824, and (2)
the colonization law of the State of Coahuila and Texas of
March 24, 1825, made in pursuance of the former. Taking up
the national law, the commissioners observed that the first
article declared: "The Mexican nation offers to foreigners
who come to establish themselves within its territory security
for their persons and property, provided they subject them-
selves to the laws of the country." The second authorized the
State legislatures '*to form colonization laws or regulations
for their respective States," conformably to the national law
and the constitution. The fourth forbade the States to '* colo-
nize any lands comprehended within twenty leagues of the
limits of any foreign nation," or "within ten leagues of the
coast," without " the ai)probation of the supreme executive
power." The seventh declared that after 1840 "the general
congress sluUl not prohibit the entrance of any foreigner as a
colonist unless imperious circumstances shall require it with
respect to the individuals of a particular nation." The eighth,
notwithstanding this prohibition, reserved to the government
the power, "without prejudicing the objects of this law," to
"take such precautionary measures as it may deem expedient
for the security of the confederation as respects the foreigners
who come to colonize." The ninth required a preference, i
3436 INTERNATIONAL ARBITRATIONS.
the distribation of the lands, to be inven to Mexican citizens.
The twelfth forbade the uniting in the hands of one person,
with the right of property, of more than one square league
suitable for irrigation, four square leagues of arable land with-
out the facility of irrigation, and six square leagues of graz-
ing land. The fourteenth guaranteed <^the contracts which
the empresarios may make with the families which they bring
at their own expense, provided they are not contrary to law.^
The fiftecDth article was as follows: "No person who by vir-
tue of this law acquires a title to lands shall hold them if he
is domiciliated out of the limits of the republic."
The provisions of the State law were harmonious with the
foregoing. It offered to persons, already in the State, lands
for settlement upon application to become an inhabitant and
taking an oath to obey the State and Federal constitutions,
and to observe the religion which the latter prescribed. The
sixth article was substantially the same as the seventh and
eighth articles of the national law, requiring all who should
be admitted to subject themselves to such precautionary meas-
ures of national security as the national government, without
prejudicing the objects of this law, may think proper to adopt
relative to them. The eighth, ninth, twelfth, thirteenth, and
fourteenth articles related particularly to the system of colo-
nization by contract. The eighth provided that projects for
new settlements, into which one or more persons offered to
bring at their own expense one hundred or more families,
should be presented to the government, and, if found conform-
able with the law, should be admitted ; that the government
would immediately designate the lands which were to be set-
tled, and allow the contractors six years within which to intro-
duce the number of families contracted for, under penalty of
losing their rights and privileges in proportion to the number
of families which they should fail to introduce, the contract
to be wholly annulled if they should not bring at least one
hundred families. The ninth article guaranteed the contracts
which the empresarios should make with the families brought
at their expense, so far as such contracts were conformable to
the law. The eleventh established the standard of measure,
referring to which the twelfth article provided :
"Taking the above unity as a basis, and observing the distinc-
tion which must be made between grazing land, or that which
is proper for raising stock, and farming land with or without
CONTRACT CLAIMS. 3437
the facility of irrigation, this law grants to the contractor or
contractors for the establishment of a new settlement for each
hundred families which he may introdace and establish in the
State, five sitios of grazing land and five labors at least, the
one- half of which shall be without the facility of irrigation,
but they can only receive premium for 800 families, although a
greater number should be introduced, and no portion whatever
less than one hundred shall entitle them to any permission, not
even proportionally."
The thirteenth article provided that if any contractor should,
on account of the families which he should have introduced, be
entitled, according to the foregoing article, to more than eleven
square leagues of land, he should be obliged to alienate the
excess within twelve years, and that if he should fail to do so
the alienation should be effected by the proper political author-
ity at public sale, the proceeds to be delivered to the owners of
the land after deducting the costs of sale. The fourteenth article
provided that to each head of a family whose sole occupation
was cultivation of the soil, one labor should be given ; that
if he should also be a stock raiser, grazing land shall be added
to complete a sitio; and that if his only occupation was the
raising of stock he should receive only a superficies of grazing
land equal to 24,000,000 square varas. The twenty-second article
required the settler, as an acknowledgment to the State, to pay
for each sitio of pasture laud $10, and for other quantities and
descriptions of land other sums, one third in four years, one in
five, and the remainder in six years, under penalty of losing the
land for a failure in any of the payments. From these provis-
ions the premium land was exempt. The twenty-fourth article
authorized the government to sell lands to Mexicans and to them
only, fixing the price and the quantity which any person might
hold. The twenty-fifth prohibited the legislature for a term of
six years from altering the law touching the acknowledgment
and price to be paid for the land in respect of *' the quantity
and quality to be distributed to the new settlers or sold to
the Mexicans." Article 26 read as follows:
"The new settlers who, within six years from the date of
possession, have not cultivated or occupied the lands granted
to them, according to their (luality, shall be considered to have
renounced them, and the resi)ective political authorities shall
immediately proceed to take possession of them and recall the
titles."
It was under these provisions of law that the contracts with
Zavala and others were made. The first in order of time was
3438 INTERNATIONAL ARBITRATIONS.
that of Vehlein, who presented his petition to the governor of
the State November 23, 1826, offering to colonize certain
described lands ^'with 300 Catholic families, of good moral
and religious habits, partly Germans or Swiss and partly
North Americans.^' The proposal was accepted December 21,
1826, and << in compliance with the eighth article of the law"
the land was designated.
Burnet's petition was presented June 15, 1826, offering to
introduce 500 families, and as many more as the land which
the government might put under his charge would accommo-
date. This proposal the government accepted December 22,
1826.
A second proposal was made by Vehlein October 13, 1828,
"to colonize with 100 families of German, Swiss, and English
origin," a small tract on the Gulf of Mexico, near the bay of
Galveston. This proposal was accepted by the supreme gov-
ernment November 17, 1825, but for less land than was stated
in the petition,
Burnet's petition was presented Juno 15, 1826, offering to
introduce 500 families, and as many more as the land which
should be put under his charge nught accommodate. The
government accepted his proposal December 22, 1826, '^ so far
as" it was "conformable to the law of colonization of the
State of March 24, 1825," and assigned to him "in fulfillment
of the eighth article, for the purpose of colonizing with 300
families having the qualifications and conditions st<ated in his
petition," a certain described tract of land, which was a part
only of that designated in the petition.
Zavala's proposal was made on March 6, 1829, for the intro-
duction of 500 families on lands bordering upon "the United
States of the North;" and he promised to do everything "in
his power to introduce the greatest possible number of Mexi-
cans," who would form "a rampart for the security and integ-
rity of the country." Tlie proposal was accepted on the 12th
of the same month, on condition that a certain part of the
families should be of Mexican origin.
Bach of these contracts was to be performed within the term
of six years from its date. It was also provided that the fami-
lies already residing within the territories, and having the
qualifications required by law, should be permitted to remain,
and that their titles should be respected; and that the surplus
lands within the allotted districts should remain at the dis-
posal of the State, " to sell the same to any Mexican subject, to
CONTRACT CLAIMS. 3439
reward military men who shall obtaiu grants from the supreme
government, or to grant to any individual paying due regard
to and respecting the private property of settlers established
according to law under this contract, or the instructions of the
commissioner."
Having thus set forth the pertinent provisions of the laws
and contracts involved in the cases before them, the commis-
sioners proceeded to consider the nature and extent of the
rights granted to the empresarios; and as to the interpretation
of the laws they said :
"In construing these laws the objects and policy of Mexico
in adopting them must be kept in view. And undoubtedly
the peopling of her vast tracts of unoccupied land by emigra-
tion from abroad was the leading purpose to be accomplished.
The appeal was made to foreigners to occupy and improve her
wastes, and she promised se(*urity and protection and held out
liberal inducements. But at the same time she appears not to
have been without some apprehension that some degree of
danger to her supremacy might arise from an indiscriminate
admission or an undue preponderance of foreign population
within her territories, and especially upon the borders of other
nation's. Her laws, therefore, while offering large inducements
to emigration from other countries, contain provisions reserving
to the government the right of control and interference when-
ever it was deemed necessary for the preservation of its su-
premacy on the colonized territories. They must therefore be
construed as well with reference to the general objects to be
accomplished as to the rights of Mexico, intended to be secured
by some of these provisions."
The lands embraced in the contracts with the empresarios
aggregated about 14,000,000 acres, much more, as the commis-
sioners observed, than was recjuired for the families to be intro-
duced and the premiums to the contractors, since if each family
had received one sitio^ tlie largest ciuantity allowable, little more
than 5,000,000 acres would have been needed for the colonists
and empresarios together. \h\t it was argued that the whole
described territory was in effect granted to the empresarios;
that they had exclusive control over and virtual possession of
it; that their title to the whole could be forfeited only by non-
performance of the conditions of the grant. Pursuing this
idea, and deducing from it a right to sell, the argument as-
serted that the empresarios by their attorneys ^'sold to the
Union Land Company twenty-eight leagues of land within the
assigned grants," and that *^the purchase thus made, when re-
duced to acres, would amount to 123,924 acres." The commis-
sioners, however, declared that they could find no ground upon
3440 INTERNATIONAL ARBITRATIONS.
which this argament coald be maintained. There was, they
said, no language in the contract, or concession, imparting a
grant of land. All that was granted was a concession or per-
mission to the empresario to introduce, under certain condi-
tions, the stipulated number of families upon the described
lands, with the understanding that when this was done he
should then be entitled to a grant in absolute property within
the allotted limits. At most he had au inchoate or inceptive
title to the premium lands promised by the laws, and such a
degree of control and possession over the whole tract as might
be necessary to enable him to perform the conditioDS of the
contract on his part.'
It was contended by some of the claimants that the empre-
sariOj having exclusive power and control over the whole terri-
tory described in his concession, had the right to colonize the
whole of it; that he was not restricted to the number of fam-
ilies stipulated for, but might introduce as many as the
allotted district would accommodate, although he could not
receive premium for a greater number than 800. One of the
claimants (General Sumner) said: '^ What we designed to do,
if we had been permitted, was not to settle that part only for
which premium was allowed to us, but the whole tract, disre-
garding the premium, which was but a trifle." The commis-
sioners were of opinion that this interpretation of the contract
could not be maintained. In each of the contracts the right
of the State to dispose of ^Hhe surplus land'' was expressly
reserved. By 'Hhe surplus land'' could only be understood
> At this point the oommissionerB disoussed certain cases before the
Supreme Court of the United States, reported in 3 Howard, 773, and 8
Howard, 833. These cases involved the law^s of Spain in regard to grants
to empre$ario8. The commissioners said :
"We think the reasoning of the court in these cases entirely applicable
to the cases before us. It can make no difference that the contractors
there were to be remunerated in some other mode than by land within the
allotted district. How they were to be compensated does not appear, nor
in our opinion is it important. The question there, as here, was one of
construction and interpretation of the words of a contract. If there be
any distinction between the cases we should incline to the opinion that
those before the court stood upon stronger grounds as grants than these
before us, for the reason that they appear to have conferred exclusive
rights upon the contractors of introducing settlers within the district.
'As colonizer the baron had a monopoly within the district to introduce
settlers.' Whether such was the nature of the contracts under the laws
of Mexico will now be considered.''
CONTRACT CLAIMS. 3441
the excess beyond what would be required for the number of
families stipulated for, and for premiums according to law.
The twelfth and thirteenth articles of the law of Goahuila and
Texas, which was supposed to give the authority contended
for, could not, in the opinion of the commissioners, be so
construed. Those articles limited the amount of premium to
which the contractor might be entitled, but did not profess to
limit or fix the number of families, except that it could not be
less than 100. His right, said the commissioners, to introduce
any number, depended upon the acceptance of his proposals by
the government, and when the law spoke of a greater number
than 800 families having been introduced, it could only mean
rightfully introduced, in conformity with the terms of the
concession. The limitation was to be found in the contract,
which in some instances specified a smaller number than the
contractor proposed, as in the case of Burnet, who proposed
to colonize with 500 families and as many more as the limits
assigned to him would accommodate, but whose proposal was
accepted for 300 only. Could it be contended that he never-
theless had the right to introduce 500, and any greater number
that the limits would allow! The commissioners thought not;
and such, they said, was the construction of the contracts by
the Government of Mexico before the present claimants had
obtained any interest in them, and even before anything had
been done by the original empresarios in fulfillment of them, as
was shown by a report made by Mr. Alaman, the Mexican
secretary of state, to the Mexican Congress, on March 4, 1830,
upon the subject of Texas and the practices which had pre-
vailed under the colonization contracts, copies of which were
delivered to Mr. Butler, the American charg6 d'affaires in
Mexico, and transmitted by him to his government. There
was, the commissioners further said, among the proofs fur-
nished by some of the claimants, evidence that the govern-
ment of Coahuila and Texas bad given an explanation of the
law of colonization in the same sense, and that this explana-
tion was communicated at an early day to the agents and
attorneys of the empresarios, who must therefore be considered
as granting only such rights as by the explanations they were
authorized to grant.
The empresarioj said the commissioners, could under the
law give neither possession nor title to the colonist whom he
should introduce. This was to be done by a commissioner,
3442 U^TEBNATIONAL ARBITRATIONS.
appointed by and acting under instructions from the govern-
ment, who was to judge of the moral qualifications and fitness
of the emigrant, to refuse admission to such as he deemed
unsuitable, to issue, in the name of the State, titles to the land,
and to put the new colonists in possession with all legal for-
mality. The whole business of surveying, allotting, and giving
possession and title was reserved to the government and was
to be performed by an officer of the government, who was in
other particulars also to keep a supervision over the colony.
The result to which the commissioners came was ^Hhat the
empresario was limited to the number of families named in his
contract, and could obtain no right by the introduction of a
larger number; that these contracts or interests in them were
assignable, and might be performed so far as obtaining and
transplanting families were to be done, by agents, attorneys,
or assignees;" that "Mexico could not rightfully annul or
intercept the performance of them merely for that cause ;^
and that "foreigners or citizens of other countries could law-
fully become such agents or assignees, and thereby obtain
valuable rights and interests in these contracts, for the viola-
tion of which Mexico would be justly responsible." They had,
they declared, "come to this conclusion, not without hesitation,
principally from the fact which appears in proof, that the con-
tracts in question were renewed or prolonged, after full infor-
mation had been communicated as well to the Government of
Mexico as to that of Coahuila and Texas, that they had been
assigned, in a manner to be hereafter stated, to certain citizens
of the United States, and that it was intended to perform them
by such assignees or trustees, under certain articles of asso-
ciation, which were also fully made known to both these
governments."
The prolongation or extension of the contracts, under such
circumstances, must, said the commissioners, be regarded as a
ratification and sanction of the proceedings which had taken
place so far as they were communicated to the proper authori-
ties of Mexico. But the rights which could thus be obtained
by assignment from the empreftario were such only as he him-
self possessed. He was undoubtedly entitled, upon the per-
formance of his contract, to the premium oft'ered by the law;
and this they thought him justly and equitably entitled to,
even though the contract was not performed, i)rovided that
the failure was occasioned by the acts of Mexico. But the
CONTRACT CLAIMS. 3443
claims before the board did not rest on that basis. There was
no evidence that the premiums t^ad not been allowed. On the
other hand, there was reason to believe that Burnet's had been
claimed and admitted, and that the other parties might with
equal success claim theirs. But the claims before the board
were for the value of the colonists' or settlers' lands, which
the parties alleged that they were entitled to, by virtue of
arrangements actually made, or which could have been made,
with the emigrants, but for the wrongful acts of Mexico.
They therefore rested upon the ground that the empresario
was entitled to any portion of the laud set apart for the col-
onist which the latter should relinquish to him. Before enter-
ing upon the consideration of this question, it was, said the
commissioners, necessary particularly to state what proceed-
ings had been taken > under the contracts, and the manner in
which the claimants deduced their right to indemnity for the
alleged wrongful interruption of their performance by Mexico.
It did not appear, continued the commissioners, that any-
thing was done by either of the original empresarios toward
the fulfillment of their several concessions till October 1830,
when a "tripartite-' agreement was entered into in New
York City between the empresarios of the first part, Messrs.
Dey, Sumner, and Curtis of the second part, and such other
persons as should become parties to the agreement of the third
part, whereby the empresarios sold and conveyed to "the par-
ties of the second part, and their successors irrevocably,''
" all the right, title, interest, property and estate " which they
had "in and to the contracts and grants before referred to,"
and " to the lands in said grants described and contained, in
an absolute and perfect possession and property," and to all
the privileges and advantages arising therefrom " or in any
way incident thereto," in trust for the use of the parties of the
first, second, and third parts, " in the proportions and accord-
ing to the number of shares resi)ectively held by each of them
therein." Under this arrangement an association was formed
by the name of " The Galveston Bay and Texas Land Com-
pany," the capital stock of which consisted of tbo contracts or
lands assigned by the empreftarios to the trustees, and such
sums as were paid by the persons admitted as shareholders.
The concerns of the company were to be managed by the
trustees named in the "tripartite" agreement and their suc-
cessors, and all the power and authority which the empresarios
5627— VOL. 4 14
3444 INTERNATIONAL ARBITRATIONS.
had under the contracts was vested in them. The stock or
property of the company was divided into 1,000 shares, the
whole of which appears to have been subscribed for; and it
was provided in the articles of association that ^< scrip" should
be issued by the company, divided into ^^ sitios and labors,"
which should be transferable by indorsement and delivery.
The trustees were aathorized to sell or mortgage the scrip
thus issued, and to distribute it as dividends among the stock-
holders in proportion to the number of shares held by them.
In form, the scrip was merely a certificate of the trustees that
the holder of it had the consent of the empresarios to locate
and hold "in severalty" the quantity of land which it specified,
anywhere within the four allotted districts. The trustees of
the company were each to receive 500,000 acres of land, being
about 113 sitios or leagues, for his personal services, and for
this quantity scrip was issued to them. Dividends were
made among the shareholders, and some certificates were sold;
and a considerable amount appeared to have been deposited
with different persons upon certain conditions, generally that
the depositary should obtain a certain number of families to
settle upon the land, under agreements that would secure to
the company a considerable proportion of the land to which
they should obtain title. The whole quantity of land for
which scrip was thus issued was 10,216,()55 acres, about double
what was appropriated by the contracts, according to the
interpretation of the commissioners. Of this amount the asso-
ciation called the Union Land Company held 28 sitios. The
Trinity Land Company, another association, claimed to be the
holder of other scrip. Anthony Dey, one of the trustees and
attorneys of the original empresarios, claimed 148 sitios and 24
labors. George Sumner, also one of the trustees, claimed 141
sitios and 12 labors. George Griswold and l^^athan Griswold
claimed 94 sitios and 12 labors; Stephen Whitney, 48 sitios ;
Nathaniel hord, ^ sitios ; George Griswold and others, com-
posing the Pilgrim Company, 132 sitiosj and Nathaniel Lord
and Nathaniel Eichards, each 11 sitios, being a part of the 132
represented by the Pilgrim Company. These parties respec-
tively claimed for the value of the land for which they held
scrip, or for the value of the scrip which, as they asserted, was
rendered wholly unavailable to them by the wrongful acts of
Mexico.
Early in 1831 the Union Land Company sent from New York
a considerable number of emigrants to take possession of the
CONTRACT CLAIMS. 3445
lands for which it held scrip, ander agreements that the
emigrant shoold convey to the company, when required so to
do, all the land to which he should obtain title except one
labor (177 acres), which he was to retain for himself. About
the same time the Galveston Bay and Texas Land Company
sent other emigrants under a similar agreement, together with
surveyors, agents, and officers of diiierent kinds to establish
the colony. The emigrants arrived in Galveston Bay in Feb-
ruary and March 1831. They were met by Colonel Bradbum,
a Mexican military of^cer, then in command of a small force
stationed at Anahuac, who prohibited them from entering
upon the land or in any way prosecuting their plans of colo-
nization, and finally compelled them by threats of imprison-
ment and military coercion to desist from the undertaking.
These proceedings broke up for a time all attempts at coloni-
zation by the companies under the Zavala and other con-
tracts. Several years were spent by their agents in endeavor-
ing to obtain from the Mexican Government a withdrawal of
the interdict which had been placed upon their operations, but
they accomplished little beyond the repeal, on November 21,
1833, of a law of April 6, 1830^ which was regarded by the
companies as the authority of Colonel Bradburn's proceedings
against them, and which was in these words:
'*By virtue of the power reserved to the General Govern-
ment in the seventh article of the law of August 18, 1824, this
act prohibits citizens of foreign countries lying adjacent to the
Mexican territory from settling as colonists in the States or
Territories adjoining such countries, and suspends contracts
not executed and opposed to this article."
Meanwhile the State of Coahuila and Texas on April 27,
1832, upon the application of John T. Mason, who acted as one
of the agents of the trustees and also under powers of attorney
from the original einjyresarios, passed a decree granting three
additional years to Vehlein and Burnet for the establishment
of the colonies " which they contracted with the government
on the 21st and 22d of December 182G." Their contracts were
thus extended to December 1835. On January 27, 1834, the
Zavala contract was extended four years, or till March 1839.
Stimulated by these apparently favorable proceedings and by
the assurances of General Mason and other agents in Mexico,
the companies, trustees, and scrip holders commenced fresh
operations. In February 1834 the Trinity Land Company was
formed, and in June following it sent out about fifty emigrants
r
3446 INTERNATIONAL ARBITRATIONS.
under contracts similar to those heretofore described. Mr.
Dey, Oeneral Samner and others made extensive arrange-
ments for surveying the lands mentioned in their scrip and
obtaining colonists to settle thereon, and agents were sent to
Texas to prepare for the reception of the colonists as they
shoald arrive. Surveys were made under the authority of the
commissioner who had been appointed by Coahuila and Texas.
With the exception of a single instance, there was no satis-
factory proof of any interference in the colonizing operations
by any Mexican authority, after the renewal or extension of
the concessions^ Large numbers of emigrants from the United
States established themselves within the districts allotted to
•
Zavala, Burnet, and Vehleiii. During the years 1834 and 1836
more than 800 colonists were admitted by the land commis-
sioners to lands within the assigned limits, with the consent of
the etnpresariOy which was necessary till May or June 1836.
Among those thus admitted there appeared the names of
several persons who went to Texas in the employ of the scrip
holders or of the companies. Indeed it was in proof that the
whole number of families stipulated in Yehlein's second con-
cession were actually in possession of their lands under
authority of the Galveston Bay and Texas Land Company's
agent. How many were admitted into the other colonies there
was no means of ascertaining with precision. At that time,
however, Texas contained a population of about 30,000, and a
large proportion of them were recent emigrants.
The difftcultieh which the colonizers were thenceforward to
experience had, said the commissioners, a different origin. The
hold of Mexico on Texas was fast relaxing. Disputes had
grown up between the colonists and the military authorities of
Mexico, and arms were soon appealed to. Revolutions were also
going on in Mexico proper, and an attempt was made in 1834
to abrogate the federal constitution of 1824 and to establish a
central or consolidated government. Against this the people of
Texas remonstrated. Popular meetings were called, a com-
mittee of safety was appointed, and the people were advised
to prepare for war. During the commotions which ensued,
Texas furnished few inducements for emigrants to settle her
vacant lands. Some already there left tlie country, discour-
aged by the dangers which seemed to threaten it. Many of
the plans of the claimants to obtain emigrants from Europe
were abandoned for that reason. Besides, there appeared to
CONTRACT CLAIMS. 3447
exist among the people in Texas a strong and active hostility
to the scheme of colonization which had been projected, grow-
ing out of a feeling that the whole country was likely to be
taken up by a few proprietors. In consequence some of the
emigrants who went to Texas with the companies' scrip, upon
their arrival there repudiated it, and obtaine<l in other colonies,
or upon lands not granted, possession of a whole sitiOy instead
of the quantity which they would have received under their con-
tracts. The continued operation of these causes almost entirely
destroyed the value of the scrip held by the claimants, and re-
sulted in the breaking up of their extensive schemes of coloni-
zation. But the principal blow, said the commissioners, was
given by the new government of Texas, or rather by the peo-
ple themselves in the establishment of the provisional govern-
ment which was instituted in 1835. In the declaration issued
on that occasion, as well as in the constitution adopted in 1836,
it was difficult, said the commissioners, not to see a distinct
and settled purpose on the part of the people of Texas to
abrogate and put an end to the entire system of colonization
which had before been practiced. No rights or titles but those
of the settlers or citizens of the republic were recognized. No
alien could hold title unless derived from the republic. No
transfer was valid, except to a citizen of the republic, and the
leading object of "quieting the people in the possession of
their lands" was conspicuous throughout. In this series of
events there was abundant cause for the depreciation of the
scrip and the overthrow of all the plans of colonization, which
constituted the foundation of the larger part of the claims
before the commission.
Was Mexico, asked the commissioners, responsible for these
proceedings! It could hardly be seriously contended that
Mexico should be held responsible, upon the ground that by
her arbitrary proceedings and attempts to establish military
control over Texas she brought those troubles upon herself
and drove the colonists to take up arms in their defense. The
board could not undertake to pass upon the internal concerns
of that nation, or its right to change its form of government.
The right of Mexico to maintain her dominion over Texas and
to reconquer it, if she could, was unitormly recognized by the
United States, and the duty of strict neutrality on the part of
citizens of the United States was enjoined by the highest
authority. The commissioners therefore could find no ground
3448 INTERNATIONAL ARBITRATIONS.
upon which Mexico could be held responsible for the loss of
value which the scrip underwent, and which formed the basis
of several of the claims before them and entered largely into
the remainder. The following memorials, setting forth claims
of this character only, they accordingly rejected:
George Griswold and others, for 132 sitiosy under the name
of the Pilgrim Company.
George Griswold and the executors of Nathaniel L. Griswold,
for 94 sitioH and 12 labors.
Stephen Whitney, for 48 sitioa.
Nathaniel Lord, for 43 sitios.
Nathaniel Lord, for 11 sitios, being a part of that comprised
in and claimed by the Pilgrim Company.
Nathaniel Kichards, for 11 sitios, being also a part of the
Pilgrim Company's claim.
Anthony C. Dey, for upward of 48 sitios.
The claim of General Sumner contained some items of a kind
not embraced in those already disposed of, but the commis-
sioners found that those items were not sustained by the evi-
dence, and rejected the claim on the same ground as the fore-
going.
The Galveston Bay and Texas Land Company claimed spe-
cifically for the amount paid to Zavala, Vehlein, and Burnet
to obtain the assignment of tbeir contracts ; for sundry expendi-
tures in sending settlers to colonize the lands in 1831, and for
sums paid in supporting the colonists; for damages recovered
against them by some of the persons thus sent, who were pre-
vented from taking possession of the lands by the m litary
interference of Colonel Bnulburn ; for large expenditures in
sending agents to Mexico to procure a repeal of the act of
April 1830, and the recognition of their claims; for the value
of 248,000 acres of land, to which they would have been
entitled under the agreement with the colonists sent by them,
if they had been permitted to take possession of the quantity
allowed to them; and for 26 sitios more, which they surveyed
in 1835, but for which no colonists were sent.
The Trinity Company, by 11. S. Coxe, trustee, claimed for
the value of 121 sitios, less certain deductions; for various
expenses, including those incurred in sending emigrants who
were not allowed to take possession of their lauds in 1834;
for property seized on board of some of the vessels employed
in transporting provisions for the settlers, and for a small
CONTRACT CLAIMS. 3449
vessel or boat used as a teuder or lighter in Galveston Bay
and taken by a Mexican vessel of war.
There was, said the commissioners, very little information
as to the ground upon which the Mexican authorities at one
time undertook to interdict the colonizing of the lands, but
there was much reason to suppose that it was connected with
personal and party considerations. The movement was origi-
nated by General Teran, who was represented as being per-
sonally hostile to Zavala. Mr. Alaman's report, which had
already been adverted to, was founded on information derived
from General Teran, and the law of April 6, 1830, was the
result of that report. That law, . however, which forbade the
introduction of citizens of coterminous nations, did not exclude
the settlers sent by the companies, except so far as they were
citizens of the United States, and the most of them were
proved to have been of foreign origin. There was strong
ground for the belief that many of them were admitted as
settlers and received land upon surrendering their contracts
with the companies. It was in proof that at the time of
the occurrences of 1831 a land commissioner was present
to receive the settlers and put them in quiet i)OSsession of the
land, but that he was seized and imprisoned by Colonel Brad-
burn's orders. That the law of 1830 was misconstrued or
perverted by General Teran was rendered highly probable
not only by its repeal, but also in immediate connection with
its repeal, by the renewal of the contracts expressly upon the
ground of the interruption by the State authorities.
After the repeal of the law of 1830 the only interruption by
the Mexican authorities of the work of colonization was that
caused by the objection of a Colonel Contreras to the admis-
sion of the emigrants sent by the Trinity Company in June
1834. The difficulty arose out of a claim of the collector of
the i>ort for payment of duties on the cargo of the vessel in
which the emigrants were sent. The company insisted that
the cargo was not subject to duty and refused to pay it. The
collector refused to admit the vessel to entry and obtained the
aid of Colonel Contreras to enforce the demand. Finally,
after the lapse of some days, the matter was compromised by
the company paying a part of the sum demanded. But there
was no commissioner of the State then in office to give posses-
sion, and before one was appointed the emigrants had become
dissatisfied. Some of them commenced suits against the com-
pany and recovered, damages, others obtained titles in the
3450 INTERNATIONAL ARBITRATIONS.
other colonies, and some obtained rights directly from the
government.
There still remained for consideration, said the commission-
ers, a grave and important question respecting the validity
of the contracts between the emigrants and the companies,
whereby a large proportion of the land to which the former
might obtain title was to be held for the benefit and at the
control of the latter. Were these contracts valid by the law
of Mexico! If not, no injury had been sustained for which
indemnity could be claimed. If, on the other hand, they were
binding obligations, conveying valuable interests, which could
be maintained and enforced, a just claim for any injury done
to them by the unauthorized acts of Mexico would arise. The
colonization law of the State of Coahuila and Texas did not
contemplate that the settler could obtain a perfect title until
the expiration of six years from the time of possession, and in
that interval he was expressly prohibited from alienating the
land. And by the laws of Mexico no foreigner could hold
title to land within the republic. It was quite clear from these
provisions that by the contracts in question no present title
to the lands could be acquired by the companies.
The obligation on the part of the emigrant, as expressed in
the contract, was to convey to the company, whenever required
80 to do, all lands over and above one labor to which a title
might be given to him as a colonist by the government. Was
this a valid and binding contract, or was it void, as being repug-
nant to the laws and policy of Mexico! By the twenty-seventh
article of the State colonization law of March 24, 1824, settlers
were '^authorized to alienate their land when they shall have
completed the cultivation thereof and not before.-' This was
a direct and positive prohibition against alienation, until an
absolute title was acquired by the specified period of cultiva-
tion. If therefore the contracts in question were to be re-
garded as conveying lands or interests in lands, they were,
said the commissioners, clearly repugnant to the law and
wholly void. The question w^as indeed so decided by the
supreme court of Texas, in December 1847, in the case of
Hunt V. Robinson (1 Texas Reports, by Webb and Duval, 748).
In that case Hunt obtained a sitio of land as a colonist in Feb-
ruary 1832, and received the U'^ual certificate of right of pos-
session. In December following he entered into a contract to
sell the land to Robinson, and to give him a deed therefor ''as
CONTRACT CLAIMS. 3451
soon as the law of the State will permit the alienation and
transfer.'^ A part of the consideration paid by Bobinson was
a conveyance to Hunt of other lands, which the latter entered
upon and cultivated. Bobinson went into possession of the
league contracted for with Hunt, and made improvements
upon it After the death of the original parties, no deed hav-
ing been given, the heirs of Bobinson instituted suit against
the heirs of Hunt for a specific performance of the contract.
The supreme court of Texas decided that the contract was
wholly void and inoperative, being repugnant to the laws and
the policy of Mexico, and of the State of Coahuila and Texas.
It was contended by the claimants before the board, said the
commissioners, that the principle of this case did not apply to
their claims, since the decision appeared to have been founded
upon a law of Coahuila and Texas, of April 28, 1832, which
was enacted after the injuries complained of by some of the
claimants had been inflicted. By that law it was declared :
"No new settler, Mexican or foreigner, shall under any pre-
tense sell or alienate the land or water that falls to his share,
until after six years from the time of taking possession." It
was also contended that the enactment of the law of 1832 was a
clear admission that no similar restraint upon alienation pre-
viously existed. It would be seen, however, said the commis-
sioners, by reference to the whole law of 1832, that it was a
comprehensive statute, which repealed the law of 1825 and
established in its place a new colonization law, which was the
only one in force at the time when the contract between Hunt
and Bobiuson was entered into. But, in their provisions
against alienation, the language of both laws was substan-
tially alike ; and the commissioners declared that they were
"constrained to come to the opinion that the contracts by
which the holders of the scrip attempted to secure to them-
selves a portion of the land that might be awarded to the col-
onists were void, conveying no rights, and for the loss of
which no indemnity can be claimed."
Were the claimants entitled on other grounds to any indem-
nity for the losses which they had undoubtedly sustained in
prosecuting their enterprise ? In answer to this inquiry the
commissioners observed that they were authorized by Article I.
of the unratified convention of 1843 to decide all claims upon
"principles of right and justice/' which terms, as they under-
stood them, were '^ equivalent to a broad equity, taking into
3452 INTERNATIONAL ABBITBATIONS.
consideration all the circamstances of the case.'' There could
hardly be a doubt that the claimants acted <Mn good faith, and
under a full conviction that they -were authorized to do what
they engaged to do. Opinions of eminent lawyers were taken.
Men of the highest respectability were concerned. Assurances
were given by their agents in Mexico that their proceedings
were conformable to law. The practice under other and earlier
colonization contracts induced them to believe that there would
be no interruption of their plans. No judicial decision had at
that time given an interpretation to the laws of the State ;"
and, so far as could be seen, <Hhey had no admonition or reason
to doubt that the settlers they sent would be received and
admitted to the possession of their lands." Many of the emi-
grants ^^were possessed of the qualifications to be received as
colonists." Many were admitted, as there was reason to
believe, after they had been released from their contracts.
Gontinuing, the commissioners said :
"Having been released from their obligations, so far as they
availed themselves of their presence in Texas to obtain lands
they were bound to repay the expenses of their transporta-
tion. The authorities of Mexico might well be required to
admit the emigrants as settlers, notwithstanding their con-
tracts, leaving to them to repudiate the agreement, or to the
State to refuse granting a title because of the attempted aliena-
tion whenever the time for giving it should arrive. It was not
for Mexico to refuse to receive a settler otherwise qualified,
because she apprehended he had entered into agreements
which her laws did not permit. * * * The whole control
was in her own hands ; and she could legitimately have with-
held the title when called for, for the reason that the settler
had no right to transfer it. It was not until 1847 that the
claimants can be regarded as having knowledge of the true
interpretation of the laws of the State, and considering that
they acted in good faith, and incurred great expenses and sus-
tained heavy losses in being prevented from doing what they
had good reason to suppose they were authorized to do, and
that Mexico had furnished ground by tolerating similar under-
takings for their honest belief as to their rights, we think that
in equity and according to principles of right they ought to be
indemnified for the expenses actually incurred in sending emi-
grants who were entitled to be admitted as colonists, and for
the expenses incurred in their support and for damages paid
by the refusal of the Mexican authorities to receive them as
such. It may fairly be inferred, we think, that Mexico by the
repeal of the act of 1830, under the provisions of which the
proceedings complained of took place, and the State of Coa-
huila and Texas by the renewal of the contracts, admitted
CONTRACT CLAIMS. 3453
that some wrong had been doue, and intended thereby to make
a reparation, and if sabsequent events already detailed had
not prevented that reparation from being available, undoubt-
edly to some extent remuneration would have been received.
But without enlarging upon these considerations, we are of
opinion that an equitable and just claim exists for tbe amount
of expenses before enumerated, and to that extent we decide
that the claims of the Union Land Company and the Trinity
Land Company are valid.
^< The claims of the Galveston Bay and Texas Land Company,
so far as they stand upon the same grounds, are also allowed.
"It is contended very earnestly, and in elaborate argu-
ments, that the claims of the Union Land Company stand
upon a different footing from all the others before us, growing
out of the same transactions, for the reason that they were pre-
sented to the commission under the convention of April 1839,
and upon a difference of opinion between the American and
Mexican members of that board were referred to the umpire,
and by him returned without a decision thereon.
"It does not appear that any reference was made by the
Mexican commissioners to the question of damages, and hence
it is insisted that there was no point of difference ui)on that
subject to be submitted to the umpire, or which we can now
determine, and that an award must be for the amount, and for
the grounds of claim, which in the opinion of the American
commissioners the claimants were entitled to. We are not
prepared to admit this conclusion. On the contrary we hold
that where, on the one hand, the claim was wholly rejected
and nothing allowed, or, on the other, tbe claim was admitted
and a given sum allowed, both the validity of the claim and
the amount of it are to be considered as points of difference.
It appears to have been so regarded by the umpire, for in
several instances where no notice was taken by the Mexican
commissioners of the amount of damages claimed, his award
fell far short of the sum reported by tbe American members
as being justly due. In a few cases objections were made as
well to the amount as to the validity of the claim, but it is
not to be inferred thence that where no objection was dis-
tinctly made a difference of opinion in regard to it did not
exist. It is rather to be inferred that tbe subject was never a
topic of discussion and was not therefore a point to be reported
by either party for the decision of the umpire.
'*Itis unnecessary, however, to pursue these observations
further, because we find that the report of the American com-
missioners, which is urged as conclusive as to the amount to
be awarded, is substantially in couforniity with tbe views
which we have already expressed. No sum whatever was
allowed by them for tbe value of tbe land, or for damages sus-
tained by depriving tbe emigrants of their title to be held for
the benefit of tbe company. Tbe only amounts reported by
them to the umpire were fur tbe expenses incurred ui)on the
3454 INTERNATIONAL ABBITEATIONS.
principles already stated by us. The original report is before
ns. It is quite voluminous, and although it argues in the main
body of it, at much length, the validity of the claim for the
value of the land, yet before it was assented to, and in the state-
ment of the amount of claim, it is clearly shown that that part
of it was abandoned.
^' The report refers to an account or statement appended,
showing the amount to which, in the opinion of the American
commissioners, the claimants were entitled. It was subscribed
by Mr. Brackenridge, one of the members of the board, and
immediately following his signature was a note or addition to
the report as follows :
''' Concurring as I do with niy American colleague in sending the fore-
going report to the umpire, it is proper that I should say that^ owing to the
late period at which this case was presented to the hoard and the many
others then pending hefore it in my hands entitled to precedent consider-
ation, I have not been enabled to solve some doubts which I have in relation
to the damages claimed for the lands from which the colonists sent out
by the claimants were excluded by the interposition of the Mexican
authorities.
"'W. L. Marcy.'
"This note admits of two interpretations: 1. That Governor
Marcy entertained doubts as to the amount which .ought to
be awarded, etc. 2. Doubts as to the claim itself. We think
the latter the true interpretation. It is not doubts as to the
amount of damages claimed, but rather doubts as to the claim
for damages, which was entertained. A further examination
of the report confirms us in this opinion. The last item in the
account appended to it has this note prefixed: 'Suspended
item — see Mr. Marcy 's note.' It has been strongly urged that
these words constituted no part of the report as it was drawn
and submitted to the umpire, but that they have been inter-
polated since, and are not to be regarded by us as of any mean-
ing. There is no evidence or explanation tending to show that
they were not a part of the report when it was finally agreed
to by the commissioners. They were undoubtedly added, as
was Governor Marcy's note, after the report was drawn, and
added because Governor Marcy would not assent to it without
such modification. We are greatly at a loss to imagine upon
what principle we can be called upon to expunge these words,
more than any other words, from tbe document, which is the
only record we have of the opinion to which the American
commissioners came in the case under consideration. We are
bound to regard it, until the contrary be most satisfactorily es-
tablished, as a true and perfect record and as being the exact
report submitted to the umpire. The words alluded to are in
entire harmony with Governor Marcy's note, and the whole
together amounts precisely to this. Governor Marcy agreed
to send the report to the umpire, but entertaining doubts as
to the claim for damages for loss of land, that item of the
account was to be considered as suspended, or not embraced
in the computation to which he did agree. There is other evi-
CONTRACT CLAIMS. 3455
dence in the paper itself showing, as we think conclusively,
that this item was not embraced in the report of the American
commissioners to the umpire. The conclusion of the account
or statement is in these words:
'''Thus the aocoant has been adjasted on the following principles: 1st.
The amount of goods according to invoices and the prohts thereon at the
time and place, which, according to proof, was 200 per cent with interest
thereon. 2nd. Disbursements attending the shipment, etc., allowed with
interest at 5 per cent. 3rd. Expenses incurred in consequence of the
breaking up oi the colonization and therefore withdrawing the same from
the commercial capital and allowing a profit thereon of 100 per cent in lieu
of estimated damajf^es. These different heads are indicated by Nos. 1, 2,
and 3 in the foUowing account.'
'< Looking to the account, we find these numbers in the mar-
gin, against the items, with words explanatory of their char-
acter, conforming to the foregoing classification ; but against the
item for land damages there is no number and no explanation,
leaving it to stand as before stated ' suspended.' The sentences
last quoted appear to have been written after tbe report was
drawn as at first contemplated, and, as well as we can judge,
are in the handwriting of Mr. Brackenridge, and were undoubt-
edly added as explanatory and to show that the claim for
damages for loss of land was not embraced in the report.
The whole amount of the three items allowed was 940,(106.40.
"In view of all this evidence we think it utterly impossible
to maintain that the American commissioners reported in favor
of the specific sum here claimed, or of any sum for the loss of
the land, or that they ever decided that a valid claim for any
amount existed on that ground. It might be urged with quite
as much if not more plausibility that as the American com-
missioners did ]iot report a larger amount than 940,(506 as the
measure of damages to which the claimants were entitled, we
are restricted to that sum.
"We feel no embarrassment therefore from the restriction
imposed upon us by the first article of the unratified conven-
tion of 1843, in awarding to the Union Land Company such
amount as upon the principles hereinbefore stated it is proved
they have sustained. ♦ ♦ * The board is of opinion, and
decides, that a portion of the claims set forth in the memorials
of the Union Land Company, the Trinity Land Company, and
the Galveston Bay and Texas Land Company, severally, is
valid, and to the extent indicated in the foregoing opinion
allows the same."
The commissioners subsequently made the following awards:
Richard S. Coxe, trustee of the Union Land Company, principal,
940,606.40; interest, 918,272.70; total, 958,879.10. Richard S.
Coxe, trustee of the Trinity Land Company, principal, 934,356.64 ;
interest, 929,202.60 ; total, $03,559.24. Wm. H. Sumner, George
Curtis, and Anthonj'' Dey, trustees, principal, $25,000; interest,
925,000; total, 950,000.
3456 INTERNATIONAL ARBITRATIONS.
<< The claim is founded on an order given to
Case of Kaiy Smith, the claimant in 1832 by one Cortina, on the
commissary at Matamoras, for the sum of
$211. It is in evidence that Cortina was at the time acting
as commissary for the garrison at Anahnac, and that the
claimant furnished supplies to that garrison in the month of
July 1832, at which time the aforesaid order bears date. It is
also in evidence that the order was presented for payment at
Matamoras in 1834 and payment was refused. The right of an
individual to make contracts for his government must be clearly
established, in order to render such government responsible
therefor. It is not sufficient in the present instance to show
that the person with whom the contract was made is one who
{from his official character it is presumed) discharged the duty
of issuing supplies to the garrison; but it is further necessary
to prove that he had the power to make contracts for such sup-
plies on behalf of the government. The board is not cognizant
of the particular powers and duties of a commissary in the
Mexican service. In the absence of such information, the
refusal of payment by the officer on whom the order was drawn
must be considered as denying the right or authority in Cortina
to make contracts for supplies as a public officer.
** This claim does not appear to have been presented to the
Mexican Government for payment; nor to the Government of
the United States for their interposition in behalf of the claim-
ant. It can not be considered in any other light than as a
contract between individuals, for the due enforcement of which
the courts of Mexico were open to the claimant and for which
the Government of Mexico was not otherwise responsible.
" The board is therefore of opinion and does decide that the
aforesaid claim * * ♦ is not a valid claim against the
Government of Mexico, and accordingly the same is not
allowed.''
Case of Mary Smith: Opiniou of Messrs. Evans, Smith, and Paine, com-
missioners, January 22, 1850, under the act of Congress of March 3, 1849.
"This claim is founded on a written agree-
Case of Hayes, meut entered into at IMiiladelpbia on the
12tli day of May 1827 between Samuel Chew
and Thomas Hayes, memorialists' intestate, by which the
former agreed to pay the latter $200 per mouth for his serv-
ices in fitting for sea and navigating to Vera Cruz a certain
'corvette vessel' called the , otherwise the Kmmngton,
CONTRACT CLAIMS. 3457
The memorialists allege that there was a balance dae to Hayes
in his lifetime for services rendered ander this contract
amoanting to the sum of $1,868.13, and which is now presented
as a claim against the Bepnblic of Mexico, for the reason, as
alleged, that Chew was the agent of Mexico in executing the
contract.
''The contract was made by Chew in his own name, and, so
far as appears upon the face of it, for his own benefit. Nor is
there any other evidence before the board to show that he
acted as the agent of Mexico in the execution of the contract,
or that he had any authority from the Government of Mexico
to bind it by any such agreement. There is, in short, an
entire absence of testimony to show any privity of contract
between the memorialists' intestate and that government.
But in addition to this the evidence which the memorialists
have filed goes very far to raise the presumption that Hayes
in his lifetime regarded his claim, if he had any, as a claim
against Chew individually, and not against the Government of
Mexico. A receipt was executed to Chew, September 9, 1829,
acknowledging the delivery by Chew of two notes of $1,000
each, which, when paid, were to be in full for Hayes's claim
for wages and services against the ship Kensington^ her owner
or owners, reserving a right to look to said Chew for $500
more. ♦ ♦ ♦ It is clear from the terms of this receipt
that Hayes looked to Chew alone for the payment of any
claims which he had growing out of the contract. It was
agreed that no further claim should be urged until Chew should
obtain his own account against the vessel.
"Chew afterward presented a claim before the Government
of Mexico, before the joint commission under the convention
of 11th of April 1839, which was allowed, and which was for
expenses incurred on account of the same vessel named in the
contract. In that account are embraced several charges for
payment made to Captain Flayes. Whether these charges are
embraced in the whole of Hayes's claim the board does not
deem it necessary to inquire.
"The contract was made with Chew alone, and his liability
alone was looked to and contracted for by Hayes. No claim
against the Government of Mexico was preferred by Hayes
before the joint commission, nor does it appear that such a
claim has ever been preferred, either directly or through the
Government of the United States. The claim is now presented
3458 INTERNATIONAL ARBITRATIONS.
for the first time, after a lapse of tweuty years since its origin.
• • ♦ The board therefore decides that the claim now pre-
ferred * ^ * is not a valid claim against the Government
of Mexico."
Case of Hayes and Jaudatif administrators of Thomas Hayes: Opinion
of Messrs. Evans, Smith, and Paine, commissioners, January 23, 1850»
under the act of Congress of March 3, 1849.
'*The memorial alleges 'that in June 1837,
Bowiand'i Case, at the time of a revolution in which Don
Alverier Perio was overthrown and General
Armijo obtained the supremacy in the province of New
Mexico, the said Perio and other officers of the government
were indebted to the memorialist in the sum of two thousand
dollars, to be paid out of the receipts of the custom-house at
Santa Fe; that the said debtors were all overthrown and
killed, and that the memorialist until this time has been
wholly remediless, etc. It is not alleged that the Government
or the Eepublic of Mexico was indebted to the memorialist, or
was in any way responsible for the obligations of its civil
officers. That they lost their lives in endeavoring to maintain
the authority of the government against a portion of its re-
volted subjects imposed no obligation upon that government
to pay their private debts. Nor does the fact alleged in the
memorial that the debts were * to be paid out of the receipts of
the custom-house' impose any obligation upon Mexico, unless
those receipts had been pledged by the government for the
payment of these debts, which is not asserted in the memorial."
Memorial of Thomas Rowland: Opinion of Messrs. Evans, Smith, and
Paine, commissioners, December 11, 1849, under the act of Congress of
March 3, 1849.
3. Convention between the United States and Great
Britain of February 8, 1853.
In the autumn of 1847 a number of Amer-
Caie of Hudson's Bay j^j^ij settlers were attacked in Oregon by the
4, ,^\ ^ Cayeuse Indians, some being killed and others
emment for Saccor "^ ' . °
of its Citiiens. captured. At that time the territory was not
under a government regularly establislied by
the United States, but the settlers, having organized a govern-
ment of their own, resolved to raise 500 men and borrow $10,000
to repel the attacks of the Indians. They applied to the Hud-
son's Bay Company for the money, and its agents, while not
CONTRACT CLAIMS. 3459
feeling aatliorized to make a loan, famished the volunteers with
provisions and stores of the value of $1,800. Of this amount
theOrecon Government had paid $j99, leaving $1,201 still due.
On another occasion the company supplied goods of the value
of $1,838.91 from Vancouver's Island, in December 1851, on
the application of American officers on that coast, for the pur-
pose of procuring the release of some American mariners who,
being shipwrecked near Queen Charlotte's Sound, were cap-
tured by the Indians.
Though these claims never were presented to the United
States, they were laid before the commissioners under the
convention between the United States and Great Britain of
February 8, 1853, and the agent of the United States did not
contest them. The commissioners said :
"In this case we are fortnnately relieved from any conflict
between the parties, as I understand it to be conceded that the
case is submitted to our consideration for such allowance as
we think is justly sustained.
"It will not be denied that the settlers of the Oregon Ter-
ritory were entitled to the protection and aid of the United
States Government. She had not, up to the ]>eriod of the
calamity referred to, extended a formal territorial government
over the country, but her citizens, in considerable numbers,
had gone on, in advance of provision made for them in that
respect, and were occupying the country for the ultimate ben-
efit of the United States, and with the early expectation of
the formal extension of the powers of the government over
them.
"While in this situation they had established, temporarily,
a government of their own, and were attacked by the Indians,
under circumstances of much barbarity, and which were calcu-
lated to put in jeopardy the safety of the whole colony.
"The circumstances required immediate effort and assist-
ance, and this assistance, as far as it was in their power, was
promptly rendered by the agents of tlie Hudson's Bay Company.
"The form of the claim as it originally existed was not di-
rectly against the Uniti^d States, but no objection is interposed
from that cause. The assistance is precisely of the character
the government would have rendered could application have
been made to it; and, on every consideration, we are quite sure
we shall have its approbiition in th(^ allowance of the claim
which ap|>ears to be i)refi'rred here fur the lirst time.
"The other item of claim depends on circumstances some-
what similar.
"Assistance rendered to shipwrecked mariners is in con-
formity to the established i)olicy of both governments through
their consuls and other oflicers abroad, and in this case the
captivity of these men by savages was superadded.
5027— VOL. 4 15
3460 INTERNATIONAL ARBITRATIONS.
''The assistaDce rendered throngh the agents of this com-
pany, made by request of Americans on the coast, secured the
release of these unfortunate men, and I am happy in having
the concurrence of my colleague in granting full remuneration
for the expenditures incurred in effecting so laudable an object.
The claims for these services are therefore allowed."
Hornby, coiiimissionory delivering the opinion of the conimisAion, con-
vention between tbe United States and Great Britain of Febrnary 8, 1853.
(S. Ex. Doc. 103, 34 Cong. 1 kohI. 164.) An award was made in favor of
the Hudson's Bay Company for $3,182.21.
4. Convention Between the United States and Peru
OF January 12, 1863.
A claim was presented to the mixed com-
Eldredge'i CaiermiggiQj^ iiuder tbe convention between the
Loa^and Sappiie* United States and Peru of January 12, 18G3,
to Gkyvemment. *f f ?
on behalf of Thomas R. Eldredge, a citizen of
the United States, against theCiovernmentof Peru, consisting
of the following items: (1) The sum of about 9,000 soles for
supplies furnished to the Peruvian army, including a small
sum of money advanced for the purchase of a medicine chest;
and (2) the sum of 2,250 soles for a bill of exchange dra\vn by
the Peruvian minister of finance against the British loan, in
1825, in favor of one Colonel Aldao, from whom it was trans-
ferred to Mr. Eldredge by the former's agent, Captain Beteta.
The Peruvian commissioner oi)i)os;ed the admission of the
claim. Taking ux) the second item, they stated that in Decem-
ber 1820 the Peruvian Government, on Aldao's misrepresen-
tation that he had lost the draft, paid part of it, and issued to
him a paper recognizing the debt (reconocimicnio) for the rest;
that it subsequently ai)pearing that the draft was in circula-
tion, the government published a notice to the ed'ect that the
draft was of no value; that Eldredge nine months afterward
imrchased it, not in virtue of an indorsement of the owner,
but of an informal paper signed by Beteta, as Aldao's agent;
that Eldredge paid only a fourth of the value of the draft, thus
recognizing the risky character of the transaction; and that
his claim for the payment of the draft was rejected by Peru in
1831. lu regard to the first item for supplies, the Peruvian
commissioners stated that the government, by a decree of
January 20, 18.'59, ordered the amonnt of money in question to
be paid; that this decree was subject to serions (juestion, since
General Santa Cruz, to whose government the supplies were
CONTRACT CLAIMS. 3461
famished, was defeated at the battle of Aiicach on the very
day on which the decree was issued; that it thus appeared
that the decree was issued in a time of "much inquietude; "
and that the credit to Aldao was not embraced in the debts
ordered to be paid.
On these several grounds the Peruvian commissioners ob-
jected to the admission of each of the cUiims. They also raised
an objection to both claims on the ground that Mr. Eldredge
should have submitted them according to the provisions of the
law of 1850 for the consolidation of the public debt. They
contended that this law was obligatory on all creditors alike,
native and foreign; that Mr. Eldredge had subjected himself
to it by petitioning for the consolidation of the debt on the
Aldao draft, and on certain supplies; and that he might still
seek the consolidation of all the debts claimed to be due him
from Peru.
The American commissioners replied that the purchase of
the Aldao draft by Eldredge was bona fide; that its transfer,
though informal, was admitted by Peru to be valid; that the
notice published by the Peruvian Government contained a
description differing in amount and in other respects from that
of the real draft, and that the draft, even if purchased for
only a fourth of its nominal value, brought more than the
government securities, called biUeteft, were then selling for.
As to the suggestion that the decree ordering payment of the
debts for supplies was issued at a time of inquietude, the
American commissioners observed that, as the battle of
Ancach was fought a hundred leagues from Lima, at a time
when no railroads or telegraphs existed in Peru, its result
could have had no inrtuence on the councils of the government
at Lima on that day, even if it were admissible to consider
whether or no the persons by whom the decree was issued were
in a state of excitement. The American con.missioners denied
that Mr. Eldredge had asked for the consolidation of any of
the debts due him, except that on the Aldao draft, the debt on
which had neither been paid nor consolidated, but merely held
in suspense; and they maintained that the terms of the law
relating to the consolidation of the i)ublic debts did not pur-
l)ort to be obligatory on the national creditors.
Being unable to a^ree, the commissioners submitted to the
umpire. General Herran, three [)oints for his decision.
1. The validity of the claim on the Aldao draft.
3462 INTERNATIONAL ARBITRATIONS.
2. The obligation of Mr. Eldredge to present bis whole claim
for consolidation.
.'5. The consequences to Peru of establishing a precedent by
admitting Mr. Kldredge's claim:
The uni]>ire held :
1. That it was not denied that the Aldao bill was unexcep-
tionable in its origin ; that its transfer to Eldredge, though
iufornial, was valid; and that it constituted a valid claim.
2. That while the laws of Peru were binding on natives and
foreigners alike, and while the authority of the government to
provide for the establishment, acknowledgment, and liquida-
tion of its debts was undoubted, yet it did not follow that
when the government made proposals to its creditors they
were obliged to accept them; that while the consolidation
law, so called, of 1830, offered liberal terms to creditors, it
could not be said that creditors who declined the benefit of it
disobeyed it, since it commanded nothing, but merely made
an offer; and that the rights of those who omitted to accept
wiiat was tendered remained in the same state as before,
especially as the operation of the law was suspended in 1852.
3. That the mixed commission, being subject to no other
law than that derived from the principles of justice and
equity, international law and the jiublic treaties, could foresee
no conscipiences other than those that proceeded directly from
its awards; and that the third point of difference was, there-
fore, beyond its jurisdiction.
The umpire further awarded to Mr. Kldredge the sum of
$15,000 in the currency of Peru, in full payment of his claim,
principal and interest.
5. Convention np:TWp:EN the United States and Mex-
ico OF July 4, 1808.
•Mn the year 1800, (Jeneral Placido Vega
CaseofManasce ft Co.: purchased from Manasse vS: Co. supi)lies and
SnppUee and Muni- ,„j,„|(.i^,jg of war amounting to the sum of
i^r^f^'l^^UebeT *'^''^^-^^^^^ payable in Tnited States gohl coin.
On file 2:3d of June 1800 they received on ac-
count from General Vega the sum of ^ 1 ,054.r>0, so that 8-,018.40
remained to be paid. Vega gave them three drafts of $500 each
in part ]>ayment, but these were protested and never paid. On
July 18th, 1800, Vega gave claimants a bond for the full amount
Contract claims. 3463
due them of $2,918.49, together with interest at the rate of 5
per cent per month, compounding every four months from the
18th day of November 1806 until paid. * * * They never
applied to the Mexican Government in a direct way for pay-
ment. Whether they intended to let the avalanche roll on
until it should crush the whole of the llepublic of Mexico, it
is not for us to say. The joint commission came to be estab-
lished, and Manasse & Co. present their claim, together with
the financial i>lah and device of 5 per cent per month com-
pound interest.
"The chief and, it must be owned, well developed argument
on the part of Mexico is that the claim of Manasse & Co ,
arising out of nonfultillment of a contract, is not within the
scope of 'injuries to their persons or property by authorities'
of that republic, namely of Mexico. The quoted words are
ipsissima verba of the conveiitioij. I do not agree with the
whole of the argument, but it is not necessary for the present
puri)ose to go over the whole. 8o far as the present case is
concerned, it was an injury 'to the person or property by an
authority,' in the sense of the convention, wlien General Vega
omitted to pay the remainder of a sum due to Manasse & Co.
for the delivery of supi)Iies and means to carry on the just
war of Mexico against France and the improvised pretender
supported by the emperor, now himself unseated. But it was
not 'an injury to person or i>ruperty by authorities' when a
contract wjis left unfulfilled which the American commissioner
has already designated by the most stigmatizing and yet by
appropriate terms. 1 leave it here undecided whether a claim,
such as is meant by the convention, can arise out of a con-
tract, and, being an unfulfilled contract, is within the limits of
'injury to person or i)ropeity.' The opprobious so-called con-
tract of Manasse »& Co., made with General Placido Vega, is
wholly dismissed. ♦ ♦ »
"But the unpaid portion of the sum originally due by Gen.
Placido Vega, for warlike material, does constitute a claim
which in my opinion falls within the legitimate province of the
commission. It is asked why did not Manasse & Co. i)rotit by
the proclamation of President Juarez of November 19th, l8G7,in
which he calls all inhabitants of Mexico to present ' all claims
for credits contracted to sustuin the war against foreign inter
vention,' and to have them a<ljusted according to certain rules
3464 INTERNATIONAL ARBITRATIONS.
prescribed by bim. The answer is that Manasse & Co. did not
do so, and that their not doing so does not necessarily deprive
them of the right to appear before an international commission
and have their claim adjudicated; and moreover, that if we
are going to decide this according to the strictest letter of the
law, as counsel for Mexico seems to desire it, it must be
remembered that the proclamation is addressed by the 'Con-
stitutional President of the United Mexican States, to the
inhabitants thereof,' and Manasse & Co. were not inhabitants
of Mexico, whether the Spanish word used for the English
inhabitant means dweller in Mexic(3 or more especially citizen.
"Equity — prescribed by the convention as one of the ele-
ments of our decisions — seems to demand that the sum still
unpaid be paid at length. It is a part of a debt incurred to
bat!ie an atrocious invader. * * *
"The commission has nothing to do with the punishment of
any offense, but the umpire admits that it went hard with him
to allow interest. Still, if the sum is due, interest is due also.
As it is, I give the following as the final decision in the case of
Manasfte d: Co. v. Mexico: The United States are to be paid by
the Government of Mexico for the use of the claimants, in the
currency of ]Mexico, the sum of $2,918.49, with the annual
interest at G iier centum from July 18, 18G6, to tlie close of the
United States and Mexican Claims Commission.''
Lieber, umpire, July 111, 1871, J. A, Manasse <f* Co, v. Mexico, No. 432,
convention of July 4, 1868, MS. Op. I. 479.
A claim was made against Mexico for the
Caseoflturria: Sup-^g^^^^^ of certain supplies furnished to the
pliefl to Troops: ,,, . . , . i « ^ n* . lo/^o
AwardofDr.Lieber. ^^'^1^^'*^^^*^" brigade" at Matamoras, in 1862,
under a contract with its commander, a Mexi-
can Liberal general. On a part, at least, of the debt con-
tracted interest was stipulated at the rate of 50 ])er cent per
annum. The commissioners differing, the ease was referred
to the umpire, whose opinion, so far as it related to i)rinciples
and jurisdiction, was as foHows:
"Whether conformably to the mere form of tlie agreement,
any sum can be obtained by the United States from Mexico,
and especially so when claimant has made no application for
payment to the Mexican Covernment, I refer to my decision in
the case of Manasse & Co. (No. 4;^2). In all ecpiity Mexico must
be supposed cheerfully to avail herself of an opportunity to
pay off debts incurred for the purpose of repelling the odious
CONTRACT CLAIMS. 3465
and arrant invasion whose object it was to subvert its entire
j^overnment."
Discarding the stipulation for 50 per cent interest, the umpire
awarded the amount of the unpaid balance and interest at G
j>er ceut from the cbite of the voucher for each re8i)eetive Bum
to the closing of the commission, all in Mexican coirency.
Lieber, umpire, July 19, 1871, Francisco lUirria v. Mejcioo^ No. 533, con-
vention of July 4, 1868, MS. Oji. 1. 528.
A claim was made for arms furnished to
XoMt'iCase. the Mexican army. The Mexican Govern-
ment had provided for their payment out of
certain custom-house receipts, but after a certain amount was
paid, the custom receipts were diverted by public authority
to other purposes, and a linal reduction was made of $30,000
in the amount {icknowledged to be due. Mr. Wadsworth, the
United States commissioner, held that this was a tortious act,
which formed a basis for an award, without reference to the
question whetluT tlie commissioners could allow claims
founded in contract. Mr. Talacio, the Mexican commissioner,
joined in the award without stating his reasons for so doing.
MoseH V. Mesico, No. 543, May 22, 1871, convention of July 4, 1868, MS.
Op. I. 335.
In the case of Frederick A, Newton v. Mexico,
Newton's Case: Cub- vr no- ^.i vr -u %n
torn-house Drafts. ^^' ^^'' ^^'^ commissioners, November 17,
1871, made an award in favor of the claimant
for certain unpaid custom house orders.
A claim was made for arms furnished to the
fAnn ^Mexican Republic in November 1800. Apart
payment was made, and for the rest of the
price a certilicnte was given acknowledging the debt. The
Government of Mexico never refused to pay it, and when
the war with France was over established a special bureau for
the liquidation of such debts. Claimant made his .application
before that bureau, and his credit was admitted as valid, but
before receiving payment he withdrew his application and
came before the mixed commission under the convention
between the l-nited States and Mexico of July 4, 1868. The
commissioners made an award in his favor, saying that as no
objection was ever made to tlie claim, nor any doubt raised as
to its justice, it should be paid.
AugUHtus Morrill, a8Hi<;in'o of Laivitt SUdman v. Mexico^ No. 891, December
20, 1871, M8. Op. II. XV2.
f
3466 INTEKNATIONAL ARBITRATIONS.
A claim was made for the hire of a steam tug
Thore de Leq^M*! j^]^i^.\^ ^y^s used by the Mexican Government.
Case: Hire of a ^, • • xu r v,- j • • -i
Steam Tmr ^^^^ umpire in the course of his decision said :
*' But, however well founded this claim may
be, the United States have, in my opinion, nothing to do with
it. It is exclusively a matter between the claimant and the
Mexican Government, api)arently reiwly to receive her and
consider her claim. It is a matter of debt, the creditor being
a woman who has no claim whatever to make the United States
(iovernment her collector of debts. The tug was used by
agreement at so much a day, and if the Government of Mexico
has not paid, I can not see that the case would fall within
the pale of our treaty, and I find it imiK)Ssible to award any
sum to be paid by the Republic of Mexico to the United States
for the benefit of the claimant."
Lieber, umpire, April 10, 1872, Jostfa Thore de Legpes v. MejricOf No. 596,
convention of July 4, 18(», MS. Op. II. 439.
The umpire ^*has carefully studied the able
Jnrifdlction of Con- ^^i j^^j^j argument with which he has been
tract Claims :0i in- r, i \ i.i i i i
« o- X.J J favored by the commissioners and by counsel
ion 01 BUT JCdward t
Thornton: De ^" each side, and has been forced to the con -
Witt's Caie. victiou that the words of the convention of
18G8, viz, ^ All claims, etc., arising from injuries
to their persons or property by authorities,' etc., comprise claims
arising out of violations of contracts; and further, this view of
the question is confirmed by other portions of the convention.
The umpire believes that the government of the claimants has
the right to sup])ort such claims and to insist upon justice being
done, although it may not be under a peremptory obligation to
do so. In exercising that right, the government would use its
own discretion, and would jirobably be guided by the circum-
stances attending each case and by the extent to which injus-
tice may have been committed. That the commission has, by
the wording of the convention, jurisdiction over claims arising
out of contracts the umpire can not doubt, and the commis-
sioners, in his opinion, have the right to exercise the same dis-
cretion as would be used by their respective governments.
The umpire considers that the claim before him arose out of a
contract, and as a member of the commission he claims the
right to decride upon its merits."'
Thornton, umpire, March G, 187r>, UrirHof John M. Ih Wilt v. Mexico j No.
431, convention of July 4, 18C8, MS. Op. IV. 42. The claim was disallowed.
eoNTRACT CLAIMS. 3467
" The umpire has already expressed his opin-
HaqviiitM of Jnrii- j^^ ^i^^^^ claims arising out of contracts come
dietion: Opinion of j ^i i.> .1 • • i. ^
sirEdwaidm ^^*der the cognizance ot the commission, but
Urn: Pond'iCtM. ^® these contracts are made voluntarily be-
tween the two parties, the umpire thinks that
the validity of the contract should be proved by the clearest
evidence, and that it should also be shown that gross injustice
has been done by the defendant."
Thornton, umpire, May 19, 1875: Charles II, Pondj aucceaaor to Cooper
«r Pond, No. 190, convention of July 4, 1868, MS. Op. III. 177; IV. 599.
The claim was diHallowed.
"It does not appear that Gen. Placido Vega
anottiai of Loans: ^j^^ empowered by his government to contract
^^*iv '-. a loan such as is stated to have been made to
warn Tnornbon:
mdman'i CaEo. ^^^ ^Y ^^*® claimants; ho was authorized only
to negotiate orders on certain Mexican custom-
houses to the amount of $260,000, and yet the claimants seem to
have preferred simply to lend their money rather than receive in
return such positive guaranties as custom house orders. But,
patting aside all these minor considerations, it must be ad-
mitted that the claimants lent their money of their own free
will, trusting to the good faith of Gen. Placido Vega, or on
the supposition that he had power to pledge the Mexican Gov-
ernment, and were allured into the transaction with the hope
of the enormous interest of 2 percent per month. But even if
Gen. Placido Vega had been fully authorized to pledge his
government to the payment of such a loan, the umpire con-
siders that the claimants have no more right, if so much, to
come before the commission for a settlement of their claim, than
if they had bought Mexican bonds in the open market, a right
to which the umpire would in no case liold them to be entitled.*'
Thornton, umpire, July 15, 1875, Jdolph Ji'idman .V* Jh'oihei's, No. 74,
convention of July 4, 1868, MS. Op. V'll. 359. On the same ground Sir Ed-
ward Thornton dismissed tlie djiiin of Salrio Pachcco v. Mexico, No. 366, MS.
Op. VII. 427, for an alleged loan of ^26,000 contracted with Gen. Placido
Vega.
October 27, 18G7, claimant entered into a con-
Coasaqaenoes of Im- ^^r^^^ y^.[^]^ (^^1 l.^nriquo A. Mexia, as agent of
p enceinma i^f(jg,^ Desiderio Pavon, ijrovernor and miliitary
ContractB: Kear- , ^ , , .. r.^ ,.
ney'iCase. commander of the btate or lamanlipas, for the
supply of arms and muniticms of war. It did
not appear that ( leneral Pavon had any authority Irom the Mex-
3468 INTERNATIONAL ARBITRATIONS.
ican Govennnent to eomniissiou Mexia to make the contract,
and tlie latter seemed even to have made purchases beyond the
instructions which were given to him. ^' Even supposing that
the contract was made with a duly authorized agent of the Mex-
ican (jovernment," the umpire did not think that the claimant
would have been entitled to seek reilress before the commission.
Continuing, the umpire said:
" He entered into the contract of his own accord, fully aware
of the condition of the Republic of Mexico and of its ability
or otherwise to pay its debts, and trusted to the good faith of
the Mexican (lovcrnment. If the circumstances of theooaD-
try afterward became such that it found a difficulty in paying
its debts, or even if there was bad faith on the part of the
government, the claimant can not expect the support of his
own government to remedy the consequences of his impru-
dence. But in this case there seems to have been no want of
good faith on the i)art of the Mexican Government, for the
contract was not with it, but with Colonel Mexia, as agent of
General Pavon, governor and military commander of the State
of Tamaulipas."'
Thornton, nnipiro, July 1(>, 1875, Kdicard Kearney \, MexicOf No. 91, conven-
tion of July 4, 186X, MS. Oii. VII. :M)\. In tlio caHO of Jl/red P. Phippa v.
Me-xicOj No. 'i;r>, :i claiiu was made growing out of a contract said to have
been entered into liy the <'lainiant Avitli Sefior lUancarte, 'who. it was
stated, was at the time govt'rnor of Lower California. There waH no
written proof of the celebration of the contract, of the delivery of the
goods, or <if their receipt by Blancarte. The claimant, said Sir Edward
Thornton, entered into the contract '*spontaueouHly, and Avith the hope,
no doubt, of making an enormous profit." Nor Avas there ^'sutBcient
proof that he was trcat<Ml Avith gross injustice, even if the contract was
really a fact." Th« claim Avas therefore dismissed. (MS. Op. VII. 440.)
In the case of Leonard T. Tread trell li^ Co,
Proof of "Injustice:" y ;\[(>jico^ Xo. 141), u claim \vji8 made gfrowinp^
Trfiftdwoll'i C&80
out of a contract for the sale of arms and am-
mnnition. The jurisdiction of the commission being contested,
Mr. Wadsworth, the Knited States commissioner, said that
the comniissi<m had already allowed such claims, and that its
decision should not be changed. He cited Moiasse d- Co. v.
Medico^ and Franrisvo Jturria v. Mexico, No. ^u):^, in the latter
of which Mr. Palacio, the Mexican commissioner, said that if
the claimant had asked for payment and it had been refused
him the refusal would have constituted an injury to be
redressed by the commission. He also cited ^foties v. Mexico^
No. 543, and AuguHtin Morrill v. Mexico, Xo. 891, observing
that in the latter case, though there was no i)roof of demand
CONTRACT CLAIMS. 3469
or refusal, Mr. Palacio, who wrote the opinion of the board,
said that as the debt remained unpaid, owing to different
decrees issued by the Mexican Government in and after 1861,
stopping payment of all creditors because of a lack of funds
to the most urgent necessities, the claim might be alloweil.
Of the same tenor, said Mr. Wadsworth, was the case of Fred-
erick A, Newton^ OHsigneCy v. Mexico^ No. 927, in which Mr.
l^alacio wrote the opinioa and made the award.
Mr. Zamacona, the Mexican commissioner, maintained that
the claim should not be allowed.
The umpire. Sir Edward Thornton, thought that th^^irere
grave doubts as to the making of the contract, but, waiving
them, said:
"The umpire * • * will go further and will repeat what
he has already said in a previous decision in the case of Charles
Pond V. Mexico^ No. 190, that even if so many defects were not
obvious, the commission ought not to take cognizance of claims
which have arisen out of contracts between citizens of the
United States and the Mexican Government, entered into vol-
untarily by the former, unless the validity of the contracts
should be proved by the claimant's evidence, and it should also
be shown that gross injustice had been done by the Mexican
Government. In the above case the contracts, if they can be
so called, were entered into by claimants voluntarily, and the
lattT ones even ra8lil3\ In 18G0 and 1861, and still more in
18G4, they must have well known, as every one knew, that the
Mexican Government was in the greatest financial difficulties,
and that there was but little chance of their being paid
promptly, although the umpire can not doubt that, if well
founded, the claims will be finally paid by the Mexican Gov-
ernment, to which the claimants state in their memorial that
they had never been formally ])resented. The umpire accord-
ingly awards that the above mentioned cLaims be dismissed."
Angnst 7, 1S75,. convention of July I, 1868, MS. Op. IV. 248.
'' In the case of Franllin Chaae v. Mexico^
*«- * J /n. , n ^^- '*^'^? it IS claimed that a forced loan was
traoted. Chase's Case. ^
imposed upon the merchants of Tampico, of
which claimant was called upon to pay a share, amounting, as
he declares, to more than 8r),000. Of this loan only a part had
been repaid to him. With regard to the forced loans the um-
pire has already exi)resse(l his opinion on several previous
occasions that such (claims do not come under the cognizance
of this commission. But in the present instance the umpire
can not even admit that the loan in question was a forced loan;
for there is no evidence to that effect. On the contrary, it
3470 INTERNATIONAL ARBITftATtONS.
seems to have been a loan made in conseqneuce of a contract
voluntarily entered into by certain merchants of Tampico with
the collector of customs of that port. There is no proof what-
ever that the three merchants who signed the contract repre-
sented other merchants at the time they so signed the con-
tract, or that the claimant was one of the original contract-
ors. It would appear that the claimant voluntarily took a
share in the loan, hoping, no doubt, that it would be a lucra-
tive speculation. But in doing so he had no arrangement
with the Mexican Government or with its autborities; he
merely, of his own accord, or at the invitation of the contract-
ors, took a share in a loan contracted for with a government
authority by others. The umpire is of opinion that such a
claim is not within the province of the commission and that
it has no jurisdiction in the case."
Thornton, iiinpiro, October 2, 1875, convention of July 4 1868, MS. Op.
VII. 448. In the case of Richard Chenery v. Mexico j No. 597, claimant was
tohavehad a comniission on a loan which he was to have negotiated under
a contract with Gen. Sanchez Ochoa. He did not place the loan, but
incurred some expenses. Mr. Wadsworth, the United States commissioner,
held that ho ought to bo reimbursed these expenses. Mr. Zamacona, the
Mexican commissioner, held otherwise. Sir Kdward Thornton decided
that the claim was inadmissible.
" In tlie case of George L, Hammalcen v.
Contract for the Con- j^iexico, Ko. 158, it IS clear that the claimant
8truct:oii of aEaii- j^ ^ eitizeii of the United States. The claim
way. Hammakeii s
Q^^ arises out of a contract between the claimant
and the Mexican Government to construct a
railroad between the City of Mexico and Tacubaya. The claim-
ant at first iiroposed to construct a wooden railway, but was
induced to make an iron one by the offer of greiiter facilities and
immunities than he had at first asked. It was therefore the
Mexican Government itself which inveigled him into incurring
greater expenses than he would otherwise have done. The rail-
road was opened for trathc on the 1st of January 18.18. Dur-
ing that year Zuloaga gained possession of the politicul i):)wer
and held the capital, and Miramon was elected president.
During 18o8 and 1859 the de facto authorities of IMexico de-
spoiled the claimant of many of the rights and immunities pos-
sessed by him and guaranteed to him by the decree of August
26, 185C. These were as much his property as the dollars in
his i)0cket, and the umpire considers that the injusti(*e com-
mitted with regard to the contract was of so grievous a nature
that the commission is justified in awarding compensation.
CONTRACT CLAIMS. 3471
The persons who committed these acts must, in the opinion of
the umpire, certainly be held to be de facto authorities of
Mexico. The Mexican Government on the 2nd of May 1862,
allowed the (claimant $100,000 as indemnification for the losses
occasioned him by the aforesaid injustice, which sum was to be
paid out of the proceeds of a loan which had been negotiated
by treaty with the United States. The treaty, however, was
never ratified.
"By allowing this indemnity the umpire conceives that the
Mexican Government admitted that an injustice had been done
to tbe claimant and by Mexican authorities. The umpire can-
not concur in the suggestion of the agent of Mexico that the
grant was a * gracious donation' (donacion graciosa) on the
part of the Mexican Government. If the latter did not think
that the wrong had been done by the Mexican authorities, it
would not have agreed to grant compensation; if it had not so
done, the natural course would have been to reinstall the
claimant in possession of the railroad; but it appears that it
lireferred to allow the claimant an indemnity rather than
revoke the measures of the authorities acting under the Mira-
mon government.
*' In inquiring into the amount of the compensation to which
the claimant is entitled, nothing can be fairer than to refer to
the agreement which was come to between the Mexican Gov-
ernment and the claimant in 1SG2. This agreement was for
the payment to the claimant of $100,000 by installments at
stated though conditioiial periods. Both parties believed at
the time that the indemnity would be paid to the claimant.
The amount, therefore, with the conditions of payment an-
nexed, may certainly be taken as the fair value of the claim
at that time.
'^ The umpire has always been opposed to consequential dam-
ages, and thinks that they ought never to be taken into consid-
eration. It is impossible to measure them with any approach
to justice; they are of an uncertain and imaginative nature,
particularly in a country where the rate of interest is so high,
and where the chances of losing both capital and interest are
quite as great as those of the realization of an immense capi-
tal. The certainty of a smaller interest upon the compensation
allowed is much more substantijil than imaginary consequential
gains.
"The claimant presented to the commission seventeen out of
nineteen of the orders on the United States Secretary of the
r
3472 INTERNATIONAL ARBITRATIONS.
Treasury delivered to liiin by the Mexican GovernmeDt. He
states that the two remaining orders are under his control, but
he has not presented them to the commission, although he
alleges that one of them is in his possession. The umpire is of
opinion that in equity these also should be paid if presented
at the time of the payment of the remainder of the claim. As
it was originally intended that the payments should be made
by installments, and as the exact date of those payments can
not now be fixed, the umpire considers that it will be more con-
venient to fix a precise date for the commencement of interest,
and that the 1st of July 1863 may bo taken as an equitable
date for that purpose."
Thorntou, umpire, August 10, 1875, convention of July 4, 1868, MS. Op.
VII. 387. If the two missing orders should he prosented, the umpire
awarded $100,000, Mexican gold, with 6 per cent interest from July 1, 1863;
if not, $90,909.09, Mexican gold, with the same rate of interest from the
same date.
'*The claim involved in the case of Lewis
Sale of Anns: Shu- ^;^^^^^.g,. ^ Mea^co, No. 539, arises out of a
maker's Case. ^
contract for supplying arms alleged to have
been made with an agent of the Mexican Government. Sup-
posing that the contract was really made with the Mexican
Government itself, and that the arms were duly delivered to
and used by the Mexican Government, facts of which the
umpire does not admit that there is suflficient proof, he is of
opinion that the case is not one of w hich the commission should
take cognizance. Looking at it in the best point of view for
the claimant, it was a contract voluntarily entered into by him
for gain. If he trusted that the Mexican Government would
l)ay him, he did so with his eyes open and in the hope that his
speculation would turn out well. If he was disappointed, this
is not, in the umpire's opinion, one of those injuries by the
Mexican (lovernment which were contemplated by the con-
vention of July 4, 18G8."
Thornton, umpire, October 1."), 1875, couvontiou of July 4, 1808, MS.
Op. VII. 476.
In the case of Tuushuj v. Mexico^ No. 39, Sir
Sale of VesseU and ].:award Thornton, Novem])er 29, 1875, disal-
MonitionB of War : , ^ i . i. r i.i n i
. , lowed a claim growing out ot the alleged non-
fultillment by the Mexican Government of a
contract, made before claimant became an American citizen,
for vessels and inunitions of war alleged to have been sold to
the Mexican Government. He inferred that the vessels were
CONTRACT CLAIMS. 3473
purchased before coining to any arrangement with the Mexican
Government, and with the secret intention of subsequently sell-
ing them to it. Such contracts, said the umpire, were not, in
his opinion, of such a nature that the commission ought to view
their not being fulfilled as an injury to the person or property
by authorities of the Mexican Republic. He said that before
making an award in such cases the most rigorous examination
would be indisi)ensable, both with regard to the real value of
the articles involved in the bargain and the i)rice agreed to
be paid, and with regard to the certainty of the injustice com-
mitted by the Mexican Government; otherwise there would be
great danger that the commission might be drawn Into coun-
tenancing and encouraging the most extravagant speculations
and fraudulent transactions.
*'In the case of The State Bank of Hartford
Sale of Armi: Stole ^.^ Mexico, No. 535, the claimants allege that
^ " they agreed to sell to the Mexican Government
on the 19th of August 1859 certain arms for
which they wore to be paid $20,950, one year after the delivery
of the said arms with interest at G per cent. Supposing that
these facts were sufficiently proved, the umpire, after having
carefully perused and reflected upon the voluminous evidence
accoinx)anying the case and the arguments furnished by claim-
ants' counsel and the agent of the United States, does not feel
justified in departing from his opinion or abandoning his con-
viction that where a contract is thus voluntarily entered into
with the Mexican Government its nonfulfillment is not one of
those injuries by Mexican authorities which was contemplated
by the convention of July 4, 18G8. In this instance the um-
pire considers that his opinion is most remarkably confirmed
by the fact that the claimants subseciuently made two further
sales of arms to Mexican authorities, with respect to which
they agreed that the value of the said arms should be paid on
their delivery, and it was so paid. There was no compulsion
with regard to the first sale ; they might have refused to sell
except for ready money, and there was no reason for their
being less cautious in the first than in the second and third.
*'But there are many defects in the evidence. There is no
proof that the governor of Nneva Leon and Coahuila was
authorized by tlic Mexican Government to purchase arms for it,
or tliat it made itself responsible for those arms; no proof that
Ignacio Galindo was empowered to sign bills for him, or even
3474 INTERNATIONAL ARBITRATIONS.
that the signature attached to the bills is really his; no proof
that Mr. McGraw was appoiuted to receive the arms and did
receive them; no proof that the arms were ever forwarded to
Mexico or ever received by the Mexican Government, and not
the slightest proof that the Mexican minister, Sefior Mata, had
any authority from his government to make a contract for the
purchase of arms or to accept bills for their payment.
"But on the general principle of the spontaneity of the sale,
the umpire is of opinion that the above-mentioned claim does
not come within the province of the commission, and he there-
fore awards that it be dismissed."
Thornton, umpire, July 27, 1876, convention of July 4, 1868, MS. Op.
VI. 437. On similar grounds Sir Edward Thornton dismissed claims for
the sale of arms and munitiouH, or of vessels, to the Mexican Government
in the following cases: liene Maason v. Mexico, No. 787, MS. Op. VI, 449;
Carlos liutUrfield tf- Co. v. Mexico, No. 966 A and 966 B. MS. Op. VI. 508;
M, O. VaVejo v. Mexico, No. 822, MS. Op. VI. 467; Charles H, JCmerson v.
Mexico, No. 673, MS. Op. V. 448, VI. 383.
"In the case of Kennedy & King v. Mexico^
"Contracts Made Vol- ^^ 579^ the claims arise out of agreements
^ / .. J^ ° made between the claimants and General Car-
Kennedy « King.
vajal to carry an imperialist division from
Matamoras to Vera Cruz, out of goods sold to General Car-
vajal, out of the sale of a steamer to him, out of freight of
arms to Tampico, and for repairing the steamer sold by the
claimants and converting it into a gunboat. It appears to the
umpire that all these transactions were nothing more than con-
tracts made voluntarily with General Carvajal, and that there
was no compulsion whatever. The claimants might have re-
fused to supply goods, or to do any of those things on account
of which the claims are presented. An attempt is made to
prove that the conveyance to Vera Cruz of the imperialist
division was forced upon the claimants, and the evidence of
General Carvajal is relied upon for this purpose. But the
umpire is of opinion that the compulsion is not proved. It is
admitted that the claimants made no resistance. Carvajal says
that they were in no condition to resist, but that can not be the
case; for there is no doubt that they might have refused to
furnish the means of conveyance, and might have obliged Car-
vajal to take them by force. C'arvajal dei>oses that had the
claimants resisted, he could have forcibly taken possession of
the steamboats. Of that there can be little doubt> But he
does not declare that he would have done so. The claimants
CONTRACT CLAIMS. 3475
were^ doabtless, like many others in Matamoras, interested in
preventing the destruction consequent upon the place being
taken by storm ; but however praiseworthy their action may
have been in that sense, the umpire does not consider it to be
proved that they were compelled to this action.
^^ It is further to be observed that the claimants had taken
their remedy by submitting their claim to the Mexican Gov-
ernment, and that by the fact of their having done so they
bound themselves to abide the decision of the ^Seccion Liqui-
dataria,' or of the higher authorities, to whom it was in their
power to appeal. They accepted also from that government a
certificate admitting that it was indebted to the claimants in
the sum of $7G,032.90. The certificate itself states that it was
granted by an order of the general government, dated the 23rd
of February 1869. The umpire is of opinion that the defense
is justified in claiming that if any injury was done to the claim-
nuts, by not allowing the whole of their claims, or not having
paid the amount allowed by the certificate till now, that injury
having been done after the exchange of the ratifications' of
the convention can not come under the consideration of this
commission.
"The umpire is therefore of opinion, for the reasons given
above, that the claims involved in the above-mentioned case
do not come under the cognizance of this commission."
Thorn tou, umpire, January 25, 1876, convention of July 4, 1876, MS. Op.
VII., 597.
"The claim involved in the case of Lew Wal-
^"wanlLrSi^ ^^^^ ^' ^^^^*^^' ^^- '^-^J arises out of a contract
alleged to have been made by the claimant
with General Carvajal, as agent of the Mexican Government.
The contract in question seems to have been to the efiect that
the claimant should assist in procuring emigrants from the
United States to Mexico, who should subsequently enlist there,
in the purchase of arms and ammunition, and in raising a loan
for Mexico. As it appears that the first of the three points
may be a violation of the laws of the United States, the com-
missioner of the United States has only supported the two
latter i>oints.
"In the first place, the umpire can not find in the authority
given to Carvajal on November 12, 1864, a copy of which is
exhibited by the claimant, that any power is given him to make
such a contract as that which he agreed to with the claimants
. 6627— VOL, 4 16
3476 INTERNATIONAL ARBITRATIONS.
*
Carvajal was authorized to engage men for enlistment, to raise
a loan, and to purcliase arms and munitions of war; but he
was not empowered to employ anyone else for that purpose.
But even if Carvajal had that power, the contract was entered
into voluntarily by the claimant; nor is any gross injustice
proved against the Mexican (lovernment, for, putting aside
the question of obtaining emigrants for 'enlistment, it is not
shown that any service was rendered by the claimant in rais-
ing a loan or in the purchase of munitions of war, or that
these were delivered in Mexico, without whi(;h condition there
was by the sixth clause of the authority no obligation.
'^Further, although it does not appear that the claimant
actually received his commission as major-general or was en-
rolled in the Mexican army, there is no doubt that he consid-
ered himself in the service of the Mexican Government, and
the umpire is of opinion that j>ro tanto he had abandoned his
rights as a citizen of the United States. As far as any com-
pensation is concerned for the services which he rendered to
the Mexican Government, he is not entitled to appear before
the commission as a citizen of the Tnited States.
The umpire therefore thinks that though the Mexican Gov-
ernment may be morally indebted to the claimant, his claim is
not within the cognizance of the commission, and that, indeed,
the claimant has no standing before it with regard to the claim
as it is described by himself.''
Thornton, umpire, ISepteniber 24, 1875, convention of Jnly 4, 1868, MS.
Op. VII. 438.
" In the case of Frederick G, Fitch v. Mexico^
^'^!?.^, ^^*~*= No. 777, tl.e claim * • • is for the pay-
Fitch's Case. ' ^ •'
ment ot services voluntarily rendered to the
Mexican (lovernment, which the claimant accepted of his own
free will and even sought, and to the performance of which he
was in no way compelled. In performing a portion of these
services the umpire is decidedly of opinion that the claimant
violated the neutrality which, as a citizen of the United States,
he was bound to observe. If the taking charge of the military
engineering and erection of proper fortifications around Ma-
zatlan, and the doing so a part of the time under a heavy fire
from »the French frigate Cordillera^ is not a breach of that
neutrality, it is diftic^ult to say what can be ccmsidered so. Of
a similar character was the claimant's ex])l()it of penetrating
into Mazatlan, when held by the imperialists, and obtaining
CONTRACT CLAIMS. 3477
therefrom a hundred thousand gun caps, which he subse-
quently delivered to General Corona. It is even stated in the
defensive evidence that the claimant actually held rank as a
colonel in the Mexican army. However meritorious, then, the
services of the claimant may have been as far as Mexico is
concerned, and however great, if the facts should be well
proved, her moral obligation may be to compensate him, the
umpire is of opinion that this commission can not take cog-
nizance of the case, and he therefore awards that the above-
mentioned claim be dismissed."
Thomton, umpire, Jnne 21, 1876, conventioo of July 4, 1868, MS. Op. VI.
441.
Joseph S. Cucullu, a citizen of the United
^""c^Slu^ST"* S^^^^S' ^^ February 2, 1858, at New Orleans,
Louisiana, advanced $40,000 to Jose Mariano
Salas, Juan Manuel Fernando de Juaregui, and two other per-
sons, all Mexican citizens and distinguished military chiefs,
who, with the leader of their party, Santa Anna, had been
defeated and driven into exile by the Liberal forces in Mexico.
For the sum so advanced Cucullu presented to the commis-
sion under the convention between the United States and
Mexico of July 4, 1868, a claim in which he asked for an award
for the sum in question, with interest, less $1,250, which he
admitted that he had received from the government of the
^'regency" set up by the French arms in the Mexican capital.
In an acknowledgment signed and given to Cucullu by the
persons in question when the advance was made, it was stipu-
lated that the money should ''be employed in the service of the
Mexican nation,'^ and that it should be repaid by a government
which they proposed to establish in Mexico, the first install-
ment of $12,500 to be paid from the proceeds "of the first
maritime custom-house over which the flag which they [the
signers] defend should be hoisted." In the memorial of the
claimant it was stated that Zuloaga, before the loan was made,
had ''sent a letter to General Salas and his companions in
exile, ordering theni to return to Mexico at once, as their serv-
ices were much needed by the government."
Opinion of Mr. Wadi- On these facts Mr. Wadsworth, the United
worth. States commissioner, said:
"It was to enable these generals, colonels, etc., so much
needed by General Zuloaga to return to tlie scene of the i)end-
ing struggle and play a useful part iu establishing the new
#
3478 INTERNATIONAL ARBITRATIONS.
government and in capturing the maritime custom-houses (all
held by the constitutional government at the time) that claim-
ant parted with his money. * * * It was too much money
to pay the passage home of a dozen exiles (a few hundred dol-
lars would have accomplished that) ; it was for the public service
the money was advanced, and the government to be established
was to repay it. * • * A few hundred dollars of the loan
was paid to each of the exiles, and the remainder invested in
munitions of war for tlie use of the Zuloaga government, against
the government established by the people of Mexico under the
constitution of 1857. And this is what claimant meaut by
advancing $40,000 for Hhe service of the Mexican nation.'
"At the time that claimant, a citizen of the United States,
took the risk of advancing this sum of money to provide the
means for a hostile enterprise from the shores of the United
States against the constitutional government of Mexico, the
Government of the United States was at peace with that gov-
ernment, and the act of claimant was apparently in violation
of the neutrality laws of his sovereign and punishable as a
misdemeiinor. If I am not incorrect in this view, the question
is i)resented, whether claimant can enforce a contract made
with one belligerent against the otijer, when by the lex loci the
contract was in violation of the neutrality law. It is certain
that thci municipal courts of the sovereign whose laws have
been violated, bound to uphold the laws by their decisions,
will treat the contract as a nullity. (Deacon v. Oliver et al.^ 14
Uowaid, 010; Gill v. Oliver^ 11 Howard, 529, citiug Williams j
trustee^ etc.,\, Oliver et al., Maryland Ct. Appeals, June term,
1843.) But an international tribunal like this has not always
taken the same view of the question, where an award was
sought af/ainst the belligerent himself with whom the eontraxit teas
made. The case of the contracts made by General Mina will
furnish an illustration. The supreme court of Maryland decided
these contracts a nullity, because they were in violation of the
neutrality laws of the United States, the lex loci. The Supreme
Court of the United States dismissed the appeals taken from
the decisions of the State court for want of jurisdiction; but
the language of the learned justice delivering the opinion of the
ccmrt in those cases, shows a concurrence on their part in the
view taken by the State court of the effect on the contract
of a violation of a penal law. And of the correctness of the
opinion of the Maryland court on the point there can be no
doubt. (See Kenneti et al. v. Chambers et al.^ 14 Howard, 38,
and cases cited.) Notwithstanding, the American and Mexican
commission which sat at Washin^Liton under the convention of
1839 allowed the claim of the shareholders in the Mexican
Company on the contracts made with General Mina, and the
money was paid. It will not much atlect the (|uestion to say
that after General Mina's death the Mexican Congress ratified
the contracts. This did not relieve them of the impurity which
nullified them in the court of the American sovereign; they were
CONTRACT CLAIMS. 3479
still a oreacb of the law, and, notwithstanding the Mexican
act of recognition, bad a suit been brought in any of the courts
of the United {States to enforce those contracts, the decision
must have been, < they areanulhty,' because the reason remd.ined
and could not be removed by Mexico, i. e,, the contract violated
the public policy of the United States, and the courts of that
"country must always consider a contract in violation of a penal
law thereof a nullity.
" But if the sovereign, whose laws have been violated by a
contract for aid between a belligerent power and his subject,
waives the ofi'ense and demands indemnity according to the
contract, is it admissible to allow the offending government to
say, 'I violated your laws in making such a contract, therefore
I ought not to comply with it upon your demand!' Would not
the injured sovereign reply with much reason, 'The enforcement
of my laws, broken by you, can not concern you; that is an
affair exclusively my own; if I see cause to overlook it, how
can you rightfully judge it!' Now, it appears to me that the
mixed commission could not have ordered and awarded pay-
ment on the contracts of General Mina if they were impure or
a nullity, and I am certain that a recognition of them by the
Mexican Congress did not prevent them from being flagrant
violations of the neutrality laws of the United States.
'' But this case stands upon a different footing. It is an
immoral contract, made by a citizen of the United States with
the agents of an insurgent party seeking to establish itself as
a government in fact, by force of arms, over the established
and rfe/wre government with which the United States was at
peace; which contract, it is now said, the latter must perform
as the successor of the former, claimed to have been de facto
the government at date of the contract. The constitutional
government of Mexico was interested in this instance in the
enforcement of the neutrality laws of the United States and of
the treaty obligations between the countries of amity and friend-
ship, and the latter was under the strongest obligations, im-
posed by treaty and the duty of an impartial neutrality, to
enforce its laws; and if it wrongfully neglected to do so, much
more If it connived at the violation, to the injury of the former,
it would be responsible for the consequences and bound to in-
demnify the injured party. There is a sense of justice felt in
every right mind, which at once revolts at the idea of requiring
the successful party resisting an attempt within the state to
overthrow its authority by another party, to pay the money
advanced to its enemy for its destruction, upon the demand of
a sovereign whose treaty engagements and neutrality laws
were violated by the contract of aid. The case of Kennett et
al. V. Chambers, supra, was that of a contract made in Ohio by
the appellants, citizens of the United States, With Chambers,
a citizen of Texas, in September 1836, whereby Chambers _
agreed to sell and convey certain lands in Texas to them for^pHn
$12,500, they reciting in the contract, as the motive of the puTj^r
3480 INTERNATIONAL ARBITRATIONS.
chase, their desire to ^advance the cause of freedom and the
iudepeudence of Texas, etc' The Supreme Court of the United
States was disposed to regard the contract as in violation of
the neutrality laws of that country; nevertheless, in adjudging
the contract a nullity, it says (Judge Taney delivering the
opinion):
^^ ^ But the decision stands on broader and firmer ground, and
this agreement can not be sustained either at law or equity.
The question in this case is not whether the parties to this
contract violated the neutrality laws of the ITnited States or
subjected themselves to a criminal prosecution, but whether
such a contract, made at that time, within the United States,
for the purposes stated in the contract and the bill of complaint
was a legal and valid contract.'
"The court answers this question in the negative. The
United States being at peace with Mexico under a treaty of
amity and friendship, every citizen was 'equally and personally
pledged with his government,' and could 'do no act nor enter
into any agreement to promote or encourage revolt or hostilities
against the territories of a country with which our government
is pledged by treaty to be at peace without a breach of his duty
as a citizen, and the breach of the .faith pledged to the foreign
nation,' says that high court. In further support of that view
the court said :
" <It was upon this ground that the court of common pleas
in England in the case of De Wiirtz v. Hendrick (9 Moore's
C. B. Reports, 58l>) decided that it was contrary to the law
of nations for persons residing in England to enter into engage-
ments to raise money by way of loan for the purpose of sup-
porting subjects of a foreign state in arms against a govern-
ment in friendship with England, and that no right of action
attached upon any such a contract. And this decision is
quoted with approbation by Chancellor Kent in 1 Kent's Com-
mentaries, IIG.'
"It is of the highest importance that citizens of the United
States, disposed to aid by their money or otherwise revolu-
tionary attempts against governments with whom the United
States are at peace, should carefully consider this language of
the supreme court of their country. I desire myself to give it
my humble sanction with such weight as belongs to the respon-
sible post I now occupy."
Mr. Palacio, the Mexican commissioner, con-
opiniono a- ^.^ppg(| ^^ ^^^ views of Mr. Wadsworth. The
CIO.
citizens of a country could not, said Mr. Pala-
cio, by the same act violate its laws and become entitled to
its protection against foreign governments. If a municipal law
declared that the giving of assistance to a belligerent was a
punishable offense, but at the same time the executive assumed
to guarantee the execution of the contract, there would result
an antagonism between the courts and the executive which
CONTRACT CLAIMS. 3481
would tend to nullify the law. Speculators would reason in
this way: "The courts fine me $10,000, but the government
will support my demand for $110,000, and consequently by
violating the law 1 gain $100,000 through the efficient protec-
tion and support of my government." It could not, said Mr.
Palacio, be maintained that the question what a government
could or could not do in behalf of the claims of its citizens
was merely a matter of internal consideration, in which foreign
governments were unconcerned. The contrary was the case.
The neutrality laws of the United States only recognized the
government's international duties. There were indeed cases
in which contracts not legally valid might be enforced on prin-
ciples of equity, as giving rise to a natural obligation. But
in order that such an obligation might exist, some benefit
must have been received by the obliged person through the
action of the other party. Considering the present case in
that light, it would, said Mr. Palacio, be found " that the Mexi-
can Kepublic did not receive any benefit, from the fact that
Cucullu supplied a dozen rebel emigrants with the means of
promoting and encouraging the civil war against the institu-
tions adopted by the people and the authorities actually in
power." In the course of his opinion Mr. Palacio said:
"That the individuals with whom Cucullu made the con-
tract had been exiled by the Mexican Government, he knew
perfectly well. It is he who tells us so in the statement pre-
sented by him in regard to his claim to the Secretary of State,
as late as the 10th of March 1870. The following are his
words:
" *In November 1857, General Mariano Salas, ex-President
of the Republic of Mexico, in company with Generals Guitian,
Pacheco, and other officers of the Mexican army, were exiled
to the United States by President ( ;omonfort. General Salas
and others above named weie ]>lace(l on a steamer bound
for New Orleans, where thev arrived in the month and year
stated.' » • *
"Persons placed in that position were the persons whom
Cucullu took for representatives of the Mexican Government,
and through whom, as he thinks, that nation contracted a valid
obligation. It is possible that the banishment of those indi-
viduals might be unjust; it is possible that President Cortton-
fort might abuse his powers in imposing it; it is possible that
it might not produce, according to Mexican laws, the maxima
cajntts diminiitio which 1 have sn]>posed to give strength to
my reasoning; but certainly it always results tiiat individnals
whom a government has i)laced in that condition, with justic
or without it, can not be taken in good faith by anybody fo
representatives of that government, and that they could no
34^2
assome tke ehAnecer ot' mg^tU9r%m tfe^t^yr of said i^Tcmaeni^
nor expect tlLftS cheir ;m?c» *y€ •>biijr&C»>B» eoacnieCcii mi j|P€ m^
should be nriiietL Ic wu.s niX pui^sible 16€ CaeuDu to think
that the goTenunent who had exiled ^aLlsalld hiscooipMiioiis
»hoald consider theoi^elres obliged to taldll the coatrart Made
by tho«e pei^^oos^ What Caeidia did chink wa» that those
exiles *evmld maktf tk^nu^flr^ tk€ <^>r^niJ«^at by oTerthrowinf:
aiMl di$po$8e«»inf the government ut Mexico: and he wished
to lend them his assi;$tance. • • «
*- It has been pretended that the decision of this case depends
upon that of the «iaostion whether or not the goTemnent of
Zaioaga was a iie/*tcto goTemment for whose acts the Mexican
Republic is to be held res^tonsible. It woold be Tery easy to
abow that it was not saeh a de j'm^o government, bat only a
fiietion which sacceeiied to s«>nie extent in acquiring the appear-
ance « >f a govern men t, without ever having a real authority freely
obeyed, or in any way recognized or accepted by the Mexican
people. Bnt the question concerning the character of the
so-calle^i government of ZuK^iga has not in this case the im-
portam-e which has been attributed to it. since it can be decided
in eitlier sense without altering the tinal decision of the present
claim. Whatever might have teen the character which the
80-ca)lled government of Zuloaga ac«|uired at length, it is evi-
dent that on the :^d of February 1S58 it could only be consid-
ered! at New Orleans as a band* of reikis agsiinst the existing
Government of Mexico, with more or less hoi>es to become a
government. This is indubitably shown by the terms of the
agreement made with Cucullu. wiiich speaks of 'raising flags,'
of 'conquering maritime custom-houses.' of 'the government
to be established/ and of * those who will form the govern-
ment.' It was kuowii at New Orleans (at least Cucullu knew
it) that 'Juarez ha4l withdrawn to Vera Cruz with the leaders
of the Liberal party and established a government there."*
These are his words in the exiK>sition addressed to the Secre-
tary of State. Cucullu knew, then, that Zuloaga had estab-
lished a 'government of the Mexiciiu Kepublie' in the City of
Mexico, and that Juarez had carried another * government of
the Mexican Kepublic ' to Vera Cruz. Who authorized Cucullu
to decide which of these two pretenders was 'the government
of Mexicot' If he took for the government that which was
not such he was bouiul to know that he ran that risk: that he
iiitru8te<l his interests to the contingencies and result of the
civil war; that he took sides with one of the belligerents, and
that he C50uld not promise himself that the acts of the one wouhl
be respected or legalized />?/ the other belligerent. If the pre-
c<idont be established that the government which becomes con-
solidated after a civil struggle takes upon itself the obligations
iumtr^i'Ua] by its (*neniy, the condition of those who si^eculate
in ufl'onling aHsiHtsince to revolutionists would be made too
favorable and mivantageous, and a premium would be offered
to those who engage political exiles in enterprises against the
anthoriiioH of their c>ountry and furnish them with the means
CONTRACT CLAIMS. 3483
necessary to participate in the civil war. Sncb men as Cacalln
woald indalge in this reasoning: ' If the party which I support
triamphs I shall not only be paid, but shall be esteemed and
considered by the victors; if the existing government triumphs
and succeeds in overpowering my friends it may, perhaps,
refuse to pay me, but I shall invoke the interposition of my
government, will make an international claim, and that gov-
ernment which I tried to overthrow will have to pay me one
dollar for each cent lent by me to its enemies.' In this same
way, as it is said, the Sultan used to make the heirs of a vassal
whom he commanded to hang himself pay for the silk cord he
sent him for that purpose. That there should be speculators
who make such pretension is not surprising; what is surprising
is that they should succeed in having that same pretension
presented and supported by a government who has so justly
acquired the reputation of being just and enlightened. This
can only be explained by supposing, as it is true, that that
government has not a perfect knowledge of the circumstances
of the case. • • •
"I wish that my opinion shall never be construed to involve
the understanding that if the i)ersons with whom Cucullu dealt
ha<l ever succeeded in forming the Government of Mexico, my
judgment would be favorable to this claim. Even in that case
I should be unable to see anything other than a debt of the
republic in favor of Cucullu. This debt is not an injury by the
authorities, and while, perhaps, a feeling of honor and a certain
respect to purely moral obligations could give it in that sup-
position some efficiency and practical validity, it is indubitable
that it could never be the subject of an international claim, and
much less a claim arising out of injuries. Even if the meaning
of this word should be extended to the extreme, comprehending
the mere omission of payment (which never was refused), it
would be always necessary that the debt, either really or pre-
sumptively, should have been placed within the knowledge of
the indebted government. It does not appear in this case that
any intimation as to the payment of such a debt has ever been
made to the Government of Mexico. The payment was claimed
only from the enemies of the republic, and I do not think that
this fact can be considered as a notification to the government
of the republic. The claim submitted to the so-called govern-
ment of Zuloaga and to the so called regency of the Mexican"
Empire could not produce the result of making the republican
government acquainted with that obligation. Does the present
Government of the United States know what were the debts
contracted by Jefferson Davis f Should the United States ever
know such debts, will they go to the bondholders, and, with-
out their previous demand, pay them in gold, since the legal
tender was not admitted by the defunct Confederation!"
Joseph H. Cucullu. v. Mexico, No. 779. Both cominissionerH also concurred
ID the view that the Zuloaga govern ment could not he considered an au-
thority of Mexico.
3484 INTERNATIONAL ARBITRATIONS.
" In the case of William W. Light v. Mexico,
Claim for Medical j^q. 912, the umpire can not but express his sur-
^ * ^ prise that it should have fallen to his lot to have
to decide upon this claim, for which, it appears
to him, there is no ground whatever for making the Mexican
Government responsible. If the claimant rendered medical
services, he did so of his own free will, and it is not shown
that he ever even presented an account to the authorities, or
that he was not paid for his services."
Thornton, umpire, convention of July 4, 1868, MS. Op. VI. 488.
'*In the case of Francis Nolan v. Mexico,
Claim for a Beward: ^^^ 337^ tij^re are a variety of claims. The
■ *•«• gj.g|j jg ijIjjj^ ^\^q State of Sinaloa oflFered a
reward of $3,000 to the person who first raised a hundred
bales of cotton in the State, and that although the claimant
complied with the condition, the State refused to pay him the
reward. The umpire conceives that this is a question which
does not come within the cognizance of the commission. It
was a sort of contract, which the claimant voluntarily entered
into with the State" of Sinaloa, and for which the Mexican Gov-
ernment can not certainly be held responsible. Nor is it even
proved that the claimant was the first man who raised a hun-
dred bales of cotton in accordance with the prescribed condi-
tions; on the contrary there were others who made a similar
claim."
Thornton, umpire, No. .337, convention of July 4, 1868, MS. Op. VII. 411.
A claim for a debt due from a municipal
Debt of Municipal Cor- corporation of Mexico was rejected by the
porauon: ompson s (jonju^jgyjoners on the ground that the Govern-
Case. ^
ment of Mexico was not obliged to pay the
debts due from or by its (;ities, villages, or their inhabitants.
William L. Thompson v. MexivOy No. 7(i5, convention of July 4, 1868,
MS. Op. VIl. 7.
6. Article XII. of the Treaty of Washington of
May 8, 1871.
William Wheeler linhbell v. Great Britain,
Use of a Patented >^q^ ^7,
Article: HubbeU's ,,^^^ memorial of the claimant alleged, in
Case.
effect, that prior to the 1st of July 1844 the
claimant was the inventor of a certain improvement in breech-
CONTRACT CLAIMS. 3485
loading firearms, for which letters patent were issued to him by
the United States, dated 1st July 1844.
''That ill the year 1844 the British Government, through Her
Majesty's consul at Philadelphia, ordered of the claimant two
specimen guns made under the claimant's invention and patent,
which were thereupon procured to be made by the claimant,
and furnished through the consul to Her Majesty's government
in 1845, and paid for by that government.
"The memorial further alleged that Mt was understood and
agreed that the invention of said mechanical principle' of the
claimant 'should be paid for by Her Majesty's governipent
whenever it should be determined ui)on for adoption in Her
Majesty's service.' That after the receipt of the specimen
guns, in 1845, it was determined by Her Majesty's govern-
ment, in the same year, that it was not expedient to adopt
them for use, but that subsequently, on the 14th March 1865
Her Majesty's government made *a full determination of
adoption in Her Majesty's service of breech-loading firearms'
known as the Snyder Enfield rifle, containing and embodying
the mechanical principle covered by the claimant's invention
and patent; and that after such official 'determination of
adoption,' in March 18G5 Her Majesty's government issued
to Her Majesty's army and navy 500,000 muskets of the
pattern named and covered by the invention and patent of
the claimant.
"The claimant claimed a royalty of $1 each upon these
muskets, amounting to $500,000, besides interest
"A demurrer was interposed by Her Majesty's counsel to
the memorial, on the ground that the commission had no juris-
diction of the claim stated in the memorijil, and that the
memorial alleged no sufficient ground of claim against Great
Britain, in that —
"1. The claim was based upon a contract, express or implied,
which was not a claim within the terms or intent of the treaty,
not being a claim ^arising out of acts committed against the
persons or proi)erty of citizens of the United States.'
"2. That if such claim on contract were within the jurisdic-
tion given by the treaty, the (claimant could have no standing
before the commission as an international tribunal until he
had exhausted the remedies in all the municipal courts of
Great Britain, and until justice had been denied him by such
tribunals in re minime dnbia.
3486 INTERNATIONAL ARBITRATIONS.
<^3. That the facts alleged in the memorial established no
such contract as claimed by the claimant for the payment
of a royalty upon guns subsequently used and covered by his
invention.
"4. That no act of Her Majesty's government was alleged
as happening within treaty time, except the 'full determination
of adoption' alleged to have been made in March 1865, and
that this was not an act committed against the property of the
claimant.
"5. That the claimant did not appear to have had any prop-
erty in his alleged invention in England, and that his property
in tbe invention in the United States had expired prior to
March 1865, and was open to the whole world.
"On hearing on the demurrer the claim was unanimously
disallowed by the commission."
Am. and British Claims Commission, treaty of May 8, 1871, Art. XII.,
Hale's Report, 40. S<'e also Howard's Report, 160, 752, 754.
7. Convention between the United States and France
OF January 15, 1880.
"Washington, March 26th^ 1884.
<'The contract of November 28th, 1870, entered
Supply of War into by and between the Government of France
icateriai: Case ^od Messrs. Valentine, Billings & St. Laurent
of Barlow, Ai- ^^^ ^^^ Supply of a hirge amount of war material,
lignee, etc 11.70 7
was executed at a time when the French Gov-
ernment was in a great and urgent need of arms and ammuni-
tion for the prosecution of its war against Germany. By that
contract a very short time was allowed to the contractors
within which the material was to be furnished; and that fact
shows that both parties understood that time was to be con-
sidered of the essence of the contract.
"One of the conditions of the contract was that the con-
tractors should make at New York a large money deposit as
security for their performance of their part of the undertak-
ing. These contractors, being unable to make such a deposit,
it was agreed between them and the French Government that
a penal bond of Mr. O. K. Garrison, in the sum of 1,000,000
francs, should be substituted for the money deposit originally
required by the contract, and the bond was furnished on the
21st of January 1871 by said Garrison to the agents of the
French Government. That government assumed no contract
CONTRACT CLAIMS. 3487
relations with Mr. Garrison, and knew him in no other light
than that of a surety or guarantor of the contract of Valentine,
Billings & St. Laurent.
"On the 11th of February 1871 the French Government, in
view of the failure of the contractors to dispatch from New
York the war material that it had contracted for on November
28th, 1870, on the condition that it should be shipped within
eighteen days from the beginning of the inspection of the
material by its agents, instructed its agents in the United
Stiites to cease inspecting the material, and thus abrogated
the contract.
"All of the parties interested in said contract with the
French Government thereupon appointed Mr. S. L. M. Barlow
their trustee and agent to obtain a settlement from that gov-
ernment of the claim which they conceived themselves to have
for the improper abrogation of the contract.
"One step in the prosecution of the claim was the institution,
at London, of a suit to enjoin the agents of the French Gov-
ernment in that city from paying out a sum of 6,000,000
francs, which had been deposited with them to meet antici-
pated drafts to be drawn against shipments of the war mate-
rial. A preliminary injunction was granted by the chancery
court of England.
"On June 7, 1871, Valentine, claiming to represent himself
and Billings and St. Laurent, made with the French Govern-
ment a new contract for the supply of part of the war material
that had been contracted for on November 28th, 1870. One of
the conditions of this new contract was that the old contract
should be considered as annulled. Another condition was
that the injunction suit at London should be discontinued.
Tliis latter condition was promptly complied with. The cor-
respondence between Mr. Barlow, trustee and agent of the
original contractors of A. B. Steinberger, assignee, and of the
surety, O. K. Garrison, and Mr. J. P. Benjamin, his counsel at
London, and the evidence of Barlow in the suit of Howes and
Crowel V. Garrison, which is found in the record, show that it
was with the knowledge and consent of Mr. Barlow, the trustee
and authorized agent, and therefore of his principals, that said
injunction suit was withdrawn.
"The new contract of June 7, 1871, was carried out by the
contractors and the French Government. Garrison furnished
th^ war material which he had purchased, and provided for the
i
3488 INTERNATIONAL ARBITRATIONS.
execution of the original contract; drafts were drawn by the
contractors upon the agents of the French Government in
payment for said material; the proceeds of the drafts went
into the hands of Barlow, the agent of the contractors; Garri-
son received more than he had expended in the purchase of
the war material that was duly insi)ected or disbursed in the
way of incidental expenses; the purposes of the compromise
contract of June 7, 1871, were fully accomplished, and the
French Government was relieved of all liability, if any had
existed, to indemnify the original contractors for the abroga-
tion, on February 13th, 1 871, of the contract of November 28th,
1870."
Opinion of the commission in the case of S. L. M, JUirlotp, assignee, and
A. Ji. Steinhertjer, assignee, v. The liepuhlie of Franc, No. 18, BoatweH's
Report, 176.
**The record in this case, with the briefs
^ ^ \. VH ^ i^»<^ printed arguments, contain about 1,800
Contract and Tort: i e» » i
Frear's Case. pages. The evidence is conflicting. The (|ues-
tions. of fact and of law are many and difficult.
We have endeavored to examine the case carefully and
thoroughly.
" It is impossible for us to set forth in dot^iil our views as to
the evidence and facts proved. All we can do is to indicate
briefly our decisions and the reasons of them.
"The claim consists —
"1st. Of four items for i>otatoes, contracted to be delivered
by one Ohevannes to the French Government in Taris, 'within
eight days following the raising of the siege of Paris.'
" Ohevannes assigned the contract to claimant, and he claims
that he delivered the potatoes in Paris according to contract.
Two of the items are for interest.
"The French Government claims that the potatoes were not
delivered according to the contract, and that when delivered
they were seized by the ccmimune, then in insurrection aganist
the government.
"When was the siege of Paris raised?
"There was no ofticial announcement of the raising of the
siege. The armistice was signed on the 28th of January 1871.
By the terms of the armistice the Prussian authorities agreed
to give all i)Ossible facilities to the French Government and
its agents to bring provisions into Paris.
"Ou the 31st of January the French minister of foreign
CONTRACT CLAIMS. 3489
afll'airs directed the French charge iu liondou to send provis-
ions by Dieppe, ^Dieppe being chosen because it is connected
with Paris by railroad lines which have not been devastated.'
"On the 2d of February the French Government gave public
notice that all merchandise necessary for food could be safely
brought into Paris, and that the government renounced all
right to requisitions.
"Ou February 3d trains of provisions from Dieppe were
brought into Paris. On the 4th and 5th of February 227 car-
loads of provisions arrived at Paris, and from that time on the
revictualing of Paris proceeded with great activity and with-
out obstruction by the Prussians. For all practical purposes
as to the delivery of provisions in Paris the siege was raised
by (at the latest) the 6th day of February.
"The claimant says that he delivered the potatoes at the
railway station in Paris by the lC»th of March; that is, not
within eight days after the raising of the siege, but only
within 38 days after.
"This was not performance of the contract. Clearly the
French Government was not bound to receive the potatoes.
"It is true that many questions as to the terms on which
peace might be made were still under discussion, and till these
were settled the Prussian forces were not withdrawn ; but as
to the revictualling of Paris, the siege was raised.
" Item 5 is for 112,808 francs due on the contract for provis-
ions delivered March 10, 1871.
"Mr. Frear claims that he delivered, and the French author-
ities received, provisions to the value of 2,705,382 francs, and
paid him only a sum less than that amount by 112,808 francs.
" But the French authorities claimed that there was a defi-
ciency in the quantity and quality of the provisions delivered,
amounting to 220,000 francs,- so that, according to their claim,
they had overpaid him.
"This dispute was finally settled by one Harouel, ficting on
behalf of Frear. He allowed 70,000 francs for the alleged
deficiency, and the French authorities paid him the balance.
Mr. Frear claims that Harouel was not authorized to make
such a compromise. We think ho was so authorized, and that
that settlement is binding on the claimant.
"With the disallowance of the fifth item, the sixth, seventh,
and eighth items for interest, and the ninth for loss of i)roflt8
on the balance of the contract, are also disallowed,
i
3490 INTERNATIONAL ARBITRATIONS.
"Mr. Frear hail become bankrupt, and the * oppositions ^ of
his creditors, by which the money coming from the government
had been attached, and so the payment of it either to him or
his creditors was delayed, can not be made chargeable to the
government.
"So, too, we think item 9th, for loss of profits, is not charge-
able to the government, for in reality he had not performed his
contr<ict in delivering the provisions within the time specified;
and the acceptance of the amounts delivered by the French
authorities was upon the basis of compromise that no farther
claims under that contract should be made.
" Lariviere had an assignment of the contract, and was fully
authorized to make the compromise. Item 10th is disallowed
with item 0. Item 11th is for the loss of profits on the contract
for cartridges.
"On December 1, 1870, Mr. Frear made a contract with
the French Government to supply them with 20,000,000 car-
tridges, which, after being submitted to a test, if satisfactory,
were to be forwarded to the director of artillery at Cherbourg
at the rate of 1,000,000 for the week beginning December 16th,
and 2,000,000 for each week thereafter, and all to be delivered
by February 28, at the latest. The dates for delivery were to
be strictly kept.
" It is plain that delivery at the t imes fixed was of the essence
of the contract. This is obvious both from the terms of the
contract and from the nature of tlie case.
" So far from complying with the terms of the contract, Lari-
viere, to whom Frear had assigned the contract, and Cannot,
the manufacturer, had delivered only 1,584,000 cartridges (as he
claims) on the 30th January. At that time 11,000,000 should
have been delivered. In point of fact, the 1,584,000 were not
delivered on the 30th January, though the French agent had
given the reijuired certificate. They were not delivered till
the 1st of March, when the whole 20,000,000 were due.
"Various excuses and pretenses for not delivering accord-
ing to the contract are set up, but we think none of them
satisfactory or sufficient. The French autliorities were fully
justified in annulling the contract and refusing to receive any
more. They did receive 2,586,058 cartridges, and paid for them
393,172.08 francs.
" This item is disfillowed.
"Item 13th. Damages for defamation of claimant's charac-
ter by the French Government,
CONTRACT CLAIMS. 3491
"Art. I of the conveutiou gives us jurisdiction of claims
^arisiug out of acts committed against tbe persons or prop-
erty of citizens of tbe United States by tbe Frencb civil
or military autborities upon tbe higb seas or within tbe terri-
tory of France,' etc.
"Neither government intended to include slander and libel
among tbe 'acts committed against tbe persons or property of
citizens.'
"We do not deem it necessary to dwell upon this jwint."
Tbe claim was disallowed by tbe unanimous vote of tbe com-
mission.
William H, Frcar v. The Republic of France, No. 9, Boutweirs Report, 202.
8. Convention between the United States and Vene-
zuela OF December 5, 1885.
In tbe case of Jacob Idler v. Yeneztiela^ No.
nmtary SuppUeg: 2, under the convention between tbe United
Idler's Case :Opin- g^^^^ ^^^ Venezuela of December 5, 1885,
ion ox Mr. Little. ' '
Mr. Little, delivering tbe opinion of tbe com-
mission, made the following statement of facts:
"In 1817 Venezuela, then enga<»:ed in war for independence,
through her chief magistrate — military and civil — Simon Boli-
var, issued what was denominated a 'diploma,' addressed *To
all those who may see these presents,' from which tbe follow-
ing extracts are taken :
** * We do hereby authorize Brigadier-General Lino de Cle-
meute, and, in case of bis death or absence, Seilor Pedro Gual,
both of them residents of Pbiladelpbia, in tbe United States
of North America, to enter into all tbe political and commer-
cial stipulations and agreements herein to be explained, to tbe
iaithinl fulhllment of which we do pledge beforehand, in tbe
most sacred manner, tbe faith of tbe republic." ♦ ♦ *
" * And give them authority to execute validly and juridic-
ally, in tbe name of tbe republic, subject to tbe instructions
given them separately, all kind of deeds and instruments of
obligation, which they may bave agreed upon with other
])artie8, in tbe form and on tbe terms and conditions which
may have seemed to them to be tbe best, it being understood
that ire shall abide literally by whatever they may have agreed
to, without entering into any inquiry or examination, or mak-
ing any remarks or objections on or to tbe contracts made by
them. All of tbe said contracts which tbe said agents or com-
missioners may make, or enter into, are beforehand ai)[)roved
of by us, as made and entered into in use of tbe full unre-
stricted powers and faculties given them by us. faculties and
powers which authorize them to deal and stipulate in the name
5627— VOL. 4 17
3492 INTERNATIONAL ARBITRATIONS.
and in the behalf of the republic, and to mortgage her prop-
erty and her revenue and resources. The said property, reve-
nue, and resources shall be pledged with absolute preference
to the pa3mients of the debts contracted by virtue of this
authority and in use thereof by the said Brigadier-General
Lino de Clemeute, or by Seilor Pedro Gual, as the case may
be, if the former is absent or dead.'
"The 'instructions given them separately,' above referred
to, include these para^aphs:
^^^ Second. They shall purchase vessels of war, muskets,
gunpowder, lead, clothing, e(iuipnients, sabers, helmets, har-
ness, and all kiuds of elements of war, and shall draw on the
exchequer of the republic, the prices to be paid either by giv-
ing their equivalent amount in cocoa, coffee, indigo, cotton,
mules, horned cattle, hides, and produce of the country, or by
setting off equivalent sums due the same exchequer for duties
on im})orts or exports, as set forth and agreed upon in the
contracts/
^^^ Fourth. They are empowered to grant the contractors
who may take to our ports the above said elements of war, all
the advantages that may be deemed just, relative either to
preference in the payment, or to the choice of the particular
kind of articles produced in the country, or to the amount
being credited to set off custom duties.'
" From its address and contents, it is manifest the diploma
was intended to intiuence dealings with, as well as to dehne
the authority of, the agents of that province.
"Beginning that year, accordingly, in the exercise and on
the faith of the powers thus given, contracts on behalf of
Venezuela were entered into at I^hiladelpliia, with Jacob Idler,
a merchant of that city, whereby, as it seems — though the
contrac^ts themselves have not been exhibited, and their ])ur-
port is in some degree inferred — he undertook for himself or
for himself and those concerned or to be concerned with him,
called in the papers his ' associates,' to furnish military sup-
plies for the use of the patriot forces in that country.
" The associates were Bogart & Kneeland, Thaddeus Phelps
& Co., and Jienjamin L. Swan, of New York, and Hammond &
Newman, of Baltimore. Just to wliat contracts or shipments
their interests respectively extended is involved in some un-
certainty. There is an agreement, however, on file, made
March 17, 18()8, which i'rees tlie case from embarrassment in
this respect if its recitals touching Hammond «S: Newman can
be taken as correct, as we suppose they may be. All were
citizens of the United States and representation is made here
in their behalf.
" For three years Clemente acted as the agent of Venezuela
in that behalf; then, instead of Gual named in the diploma,
Torres succeeded to the agency, but whether on behalf of the
same principal is one of the questions raised.
CONTRACT CLAIMS, 3493
<<Tlie business on the agents' part seems to nave been done
with Idler, who was looked to as the responsible contractor.
During four years, the most uncertain perhaps in the long
struggle of the Spanish-American provinces for liberty, he
alone, or in association as aforesaid, in the execution of the
contracts thus made, sent out large quantities of arms and
army stores to Venezuela. Of flints there were over 230,000;
of fire-locks over 25,000; and of muskets, in the last eighteen
months of the period, over 11,000 (the record does not show
how many before).
"At the completion of the contracts on their part, and for
several years afterward, four invoices remained, contrary to
agreement, in largest part unpaid for. One of these was by
the brig Elena^ lost by capture at sea in 1817 through the al-
leged fault of the Venezuelan agent, and liquidated by the
agreement of the parties in 1820; two by the brigs Wilmot and
Undymiony arriving in Angostura in May and November, re-
spectively, 1820, and a fourth and last, also by the Endymion^
arriving at La Guayra in October 1821. The last embraced
4,360 French muskets, which became a subject of controversy.
"The balance remaining due on these four shipments, ex-
ceeded, according to liquidations, in 1824, $157,000 — a large
sum in that time to be owing an American Arm, to say noth-
ing of other items of charge brought forward later, connected
with the transactions, amounting to nearly half as much more.
"Naturally, Idler and associates, after their money was over-
due a few months, became solicitous about payment.
"The banks which had accommodated them became urgent.
Pressing requests — even appeals to the South American au-
thorities were made — but without present relief. Payment on
account was urged without response. Then began a course of
liquidation resulting in litigation, and, finally, in diplomiitic
action, which, taken all in all, presents certainly a remarkable
chapter in the history of reclamations.
"The Idler claim has been a theme for the press and pam-
phleteer in both countries. It has arrested the attention of
the foreigner. Among the papers is an autograph letter from
Kudolph Humboldt on the subject, a nephew of the great
savant and himself a distinguished traveler and scholar. The
claim has been before the Congress, more than once, of each
country, and has been the subject of at least earnest discussion,
long continued, and ending only with the treaty of 1860 be-
tween the two governments.
"Among the difficulties confronting the contractors at the
outset of their eft'orts at collection, seems to have been uncer-
tainty as to the place and source of settlement. The remark
may be applied also to the South American authorities. And
there is not unanimity even now among the learned ni)on tlie
question, as the expedient e and briefs — numerous and volumi-
nous— in the case abundantly testify.
f
3494 INTERNATIONAL ARBITRATIONS.
_, .. . T. . "Just here it may be well to note some
^T^ ^' ^'^^ changes that had taken ])lace meantime affect-
daucm of Debts. .^^ ^'enezuela. In 181U-1821 Venezuela and
[N'ew Granada united and formed the llepublic of Colombia.
On the one hand, it is contended, the union occurred Decem-
ber 17, 1819; on the other, July 12, 1821. The question will
be recurred to further on.
"The 'fundamental law,' so called, of July 12, 1821, adopted
by the Colombian Congress, provided:
"'The debts which the two peoples may have contracted
separately are acknowledged in solidum by this law as a
national debt of Colombia, and all the property of the republic
is responsible for its payment.'
''A commission was created to sit at Bogota for the liquida-
tion of such debts.
"The constitution of Colombia was adopted August 30, 1821.
Under it a complete transformation in administrative affairs
took ])lace. A central government was established at Bogota.
The chief executive power was vested in a president. Bolivar
was made that officer, and clothed with extraordinary author-
ity. The territory of Colombia was divided into seven depart-
ments. There were three in Venezuela, each with its dis-
tinctive name. The central one, comprising not more than a
third of Venezuela, though greatly more than that proportion
of its inhabitants and wealth, was called the Department of
Venezuela. Its executive seat was Caracas.
"The law establishing the division provided:
" 'The political command of each department is vested, pur-
suant to the constitution, in a magistrate called intendente
!inder the orders of the President of the republic, whose
natural and immediate agent he shall be.'
"He was invested, 'in his capacity of chief of the depart-
ment,' as the law ran, with all the police, judicial, and admin-
istrative powers formerly conferred upon colonial chiefs or
governors by the former parent government. These were ex-
tensive. There was also provided for each department, quot-
ing from the statute, *a deputy learned aaesor with the same
object, jurisdiction, and powers.'
"Venezuela was made a judicial district, having a superior
court with three judges of general jurisdiction, sitting at
Caracas. This was subordinate to the supreme court at
Bogota. The intendant held a court which was inferior to the
superior court. It had jurisdiction, among other things, in
treasury matters till 1825, when the prefect's court was estab-
lished in its stead. Still the intendant seemed to exercise an
authority in that behalf, not well defined.
"Such was the governmental situation in 1822.
"The last three invoices had been i)urchased by Torres after
April 1, 1820. Whose agent was he then, Venezuela's or
Colombia's! Were liquidation and payment to be made at
Caracas or Bogota! These were questions then as well as now.
CONTRACT CLAIMS. 3495
"The four accounts, appended to this opinion, were made out
against Colombia.
"There were three liquidations of these accounts current,
more or less complete and correct.
"The lirst was in 1822-23, by Idler and associates through
their attorney in fact, William Duane, a distinguished citizen
and editor of Philadelphia, with the Colombian board of
liquidation at Bogota, established under the law mentioned.
It was interrupted by the arrival and interference of an agent
of the associates, and by the Venezuelan intendant, to whom
Duane had first gone, and who, after some delay, had dis-
claimed jurisdiction of the accounts and stated that Bogota
was the only place of liquidation and payment. He now as-
serted the 'exclusive faculty' of settlement at Caracas by
customhouse allowances — an assertion recognized and acted
on then, it seems, by the Colombian authorities. So far as
Duane had proceeded, there was shown a balance due the
contractors of $104,412, for which a certificate was issued by
the board, but nothing ever came of it. The other two liqui-
dations were made late in 1824; one by Idler (who had gone
out to Caracas in May 1823), with the Venezuelan intendant,
Escalona, showing a balance due the contractors, including
interest at 6 per cent, to its date, November 21, of $164,703.89;
and the other by the associates, without Idler's authority, it
is claimed, through their attorney in fact, Henry Ogden, with
the board of liquidation, at Bogota, showing a balance, in-
cluding interest to its date, December 31, of $119,205.84 due
them, and $38,070 (estimated as of that date from their bal-
ance) due Idler; in all, $157,342.01.
"After Ogden's settlement. Idler, denying its legality and
correctness, authorized his attorney in fact, Santos Michelena,
June 1825, at Bogota, to receive his share. The amount due
him thereunder was calculated by the board of liquidation,
with interest to June 25, and found to be $38,192.72. This
sum was paid Idler by drafts of the Colombian Government
on London. The associates were also paid the amount found
due them, the payments amounting in all to $157,458.56.
"Copies of these liquidations are also appended hereto.
There was a fourth in 1829, attempted at Bogota by one
Vargas, but as it seems to have been unauthorized, it needs
only to be mentioned.
"The two liquidations of 1824 pertained to the four accounts
current.
"Idler, it seems — just when the record does not reveal,
but after his liquidation — added to his account some items of
charge, unnecessRxy to be detailed, against the government
on account of dsimages and correction of errors. These did
not properly pertain to either of the four accounts current.
The principal one of them was for $53,781 .()3, damages for
alleged breach of contract in respect to Barinas tobacco,
again to be recurred to.
3496 INTERNATIONAL ARBITRATIONS.
"These added to the balance — difference between liquida-
tions— with interest, amounted in 1827-28 to near $8(),000.
When President Bolivar was in Caracas in that year it would
seem that the Idler and Ogden li(|uidations, with alleged
'undue rebateraeuts and substantial errors' of the latter
pointed out, including the omission of an item for demurrage
of $6,33G, together with the damage item for the nondelivery
of the Barinas tobacco, were laid before him. What resulted
is certified by Clemen te, May 13, 1833, the former Venezuelan
plenipotentiary and agent, at Philadelphia, then a major-
general in the Venezuelan army:
"'I further certify that the President, Simon Bolivar, exam-
ined the said documents carefully, and decided that the claims
should be paid at Bogota, where the general treasury was;
and His Excellency promised to see the said payments made
in full, according to the contracts, * ♦ * and ordered
Mr. Idler to go to Bogota, for which city His Excellency him-
self started on the 5th of July 1827. Mr. Jacob Idler also
started for that city, and had it not been for the unfortunate
events whi(!h destroyed harmony in the republic, he then
would have been paid.'
"It will be borne in mind the intendant exercised his func-
tions under and as Hhe natural and immediate agent' of the
President. The latter's action, therefore, in treasury (as in
other) matters had all the legal eflicacy throughout the
republic which the intendant's had in his own department.
'' Idler went to Bogota as directed in 1827. After some de-
lay because of suits instituted against him by indorsees of
the London drafts received for the Ogden balance, as above
stated, which had been returned protested (and on account of
which his losses were heavy — one letter says three-fourths of
the whole), he began the liquidation of his account.
'' Finding need for some documentary evidence which was
at Caracas, ho returned to that city for it in May 1828. Soon
after his arrival there, as it would seem, he was sued in the
])refect's court by the treasurers of the Venezuelan Depart-
ment for a balance of some $37,000, alleged to be due the
government because of overpayment at Bogota and a failure
to receive credit for sums paid.
"The record touching the institution of the suit, and the
plejidings being meager, much in this respect is left to infer-
ence. Idler, it would seem, set up his account showing the
balance alleged to be due him as aforesaid, and asked its allow-
ance and payment.
"May 28, 1828, the following order was made in the case by
the intendcnie and his asesor:
" ^ For the better settlement of this claim of Mr. Jacob Idler
against the government, and in order to render easier the
study of its merits, bringing to it light and an intelligent con-
sideration, Senors Vicente Aramburu and Klias Mocatta are
hereby appointed referees. In case that both gentlemen should
CONTRACT CLAIMS. 3497
find themselves unable to agree, tliey shall have authority to
appoint, upon consultation with this court, a third referee or
umpire. The referees are hereby given the power to call for
papers and documents, and to ask all other information needed,
either from the Treasury, Mr.. Forsyth, Mr. Idler, or Seilor
Santos Michelena, who was attorney for the latter at Bogota;
and they are particularly recommended to make their report
as early as practicable.
*' ' Let notice of the above be given to Messrs. Idler and
Forsyth.'
*' Forsyth, the old agent, whom Idler had lately sued in
attachment at Bogota, had promoted the suit.
" Notwithstanding this suit Idler, who had been put under
bonds of $40,000 not to leave Caracas till its termination,
seems not to have given up thought of securing a liquidation
still at Bogota through Bolivar. A<!Cordingly he memorial-
ized the President September 28, 1828, on the subject, setting
forth his balance then as amounting with interest to $81,380.
"The secretary of the treasury rei)lied November 5:
" ' His excellency (President Bolivar) has directed me to say
that the government acknowledges the justness of your claim,
but that the present circumstances of the treasury do not per-
mit its payment. You are therefore to wait some time further
in the assurance that very soon you will be paid.'
" Meantime the intendant issued the following, dated Octo-
ber 23 :
" 'I must for the sake of precaution declare the following:
It is absolutely necessary that this intendancy write commu-
nications and orders to the authorities of this city and of the
ports of 't3abello and La Guayra and to all authorities, civil,
military, and of high police, not to permit his [Idler's] depart-
ure over the sea under any pretext whatever; further, to
notify him personally not to absent himself from this city
till the results of the pending operation with the government
are known, and finally, to give communications to the treas-
ury of Bogota, and fof ?| the state in which this affair is now
existing, so that all liquidation and payment of his accounts be
suspended.'
" This was followed by an order of the same officer, Novem-
ber 0, in these words:
*•' * Mr. Idler is to be notified that he shall not absent himself
without having secured the result of this lawsuit.'
"No further attempt was made by the now defendant Idler
toward securing his demand from Bogota.
"On the 14th of January 1829 the referees above designated,
not having served, the intendant entered this order:
"'Let the record in this case be referred to the treasurers
[there were two] with instructions to make an examination
and liquidation of the accounts; the said examination and
liquidation to be made with intervention of Mr. Jacob Idler
and Mr. Samuel D. Forsyth.'
/
3498 INTERNATIONAL ARBITRATIONS.
"The treasurers responded in the following report, and at
about the time, it may be worth while to note, of Venezuela's
declaration of secession and inde]>endence:
" * To His Lordship the Intendant:
'* *In strict observance of your lordship's decree of the 14th
of January of the present year, on the examination and liqui-
dation of the accounts of Mr. Jacob Idler and associates with
this State, we have formed the annexed statement, having
before us, for that purpose, the principal judicial proceedings,
together with all other annexed or connected therewith :
"<lt appears from the whole, that the aforesaid gentlemen
have secured, over and above what was due to them by the
several contracts entered into with this government, the sum
of $37,795.22, as the same is evident by the comparison
between the credit and debit; for the recovery of which your
lordship will dictate such orders as you may think the most
expedient. We must also remark, should the same hereinafter
be necessary, that what this treasniy department has done
has been established entirely on the documents that it has
examined; from which it is inferred that there must be other
former documents to refer to. In consequence of wliich we are
of opinion that the whole proceedings nnist be sent back,
together with everything done in the premises, to the first
court where they took their orij;cin, in order to rectify the first
operations; Mr. Idler paying or securing previously what he
lawfully owes. For by the said statement it is evidently
proved that he has received the above said sum.
" ' However, your lordship will please to direct whatever you
may deem the most just.'
**The chief of the items, unnecessary to be enumerated,
going to make up this sum was one for $21,285, relative to
French muskets, to be explained further on.
"Thus the issues were made up, each party having fully set
out his account.
"Thereupon, January 8, 1830, the prefecture or treasury
court ordered that —
"'This case be delivered to Senor G. B. Sprotto, in order
that he, as umpire, may settle the question arising out of the
disagreement between the li(]uidation made by the treasury
and the liquidation made by Mr. Jacob Idler.'
"Seventeen days afterward, Sprotto returned his award in
writing in favor of Idler for $72,3i<).34, including interest at
G per cent to «Tune 25, 1825.
"The items of debit and credit, with the interest added a«
to each, were all set out and a balance struck. It would seem
(see letter of council of government, 18.'34, hereinafter referred
to) that by agreement of parties the whole accounts were gone
into irrespective of the liquidations.
" Here it may be well to observe that Venezuela, having
separated herself from the rest of Colombia, resumed herinde-
CONTRACT CLAIMS. 3499
pendence January 1, 1830. Her reorganized judiciary, under
the constitution of September of that year, was substantially as
before, with a supreme court of justice added, consisting of a
pi esident judge, and three associates, with a fiscal or attorney-
general. The treasury court was now to be presided over
by an officer learned in the law called jwe^s? tie letras. Its judg-
ments in treasury matters were required to be atiirmed by the
superior court in consulto before becoming binding.
*' On August 31, 1830, a short time before the prefect was
succeeded by the juez tie letrm^ the prefecture, in accordance
with the prayer of the treasurers before quoted, entered this
order :
" ' Upon consideration of the representations of the auditors
(contadores) let this expediente be forwarded to the secretary
(of the treasury) in order that if it seems proper to the govern-
ment it may be sent up to the commission of Bogota, so that,
after examination of the documents appended thereto a:id of
the observations made by the general treasury and by the tri-
bunal of accounts, the said commission may again liquidate
the amount of Messrs. Jacob Idler and his associates; and in
the mean time let Mr. Idler give bonds for the $37,795.22 of the
balance now standing against him, or let him file the original
bills of exchange drawn in his favor against the English loan.'
'*The order was not complied with, but, August 25th, 1831,
the treasury court confirmed Sprotto's award. Its action, ob-
jections to which had been filed by the treasurers, was dis-
approved, and in July 1832 Jos6 Gadenas was appointed and
qualified as revising umpire. In September of the same year
he filed his report of great length. Every item or point of
difference was taken up and weighed, and his conclusions
stated with reasons therefor. He found a balance in favor of
Idler for $70,520.11^, including interest as before to June 25,
1825. Thereupon the following order was entered by the
treasury court :
"'Let tlie foregoing award be communicated to Mr. Jacob
Idler and to the counsel for the state (ministerio fiscal), and if
desired by them let also the record of the proceedings be com-
municated to them,^
"Both parties assented in writing to the entry of the award.
No objection seems to have been made to it from any source.
On September 18^ 183J2, that court rendered this judgment:
"^Administering justice in the name of the republic and
under the authority of law, it is hereby declared that the pub-
lic treasury is responsible to Mr. Jacob Idler for the said sum
of $70,520.11^, which shall be paid him in the manner and in
the form that the supreme government may determine upon.
And the said Idler shall apply for the payment of the said
amount to the said supreme government, and file before it a
copy of this decision.'
"And on October 1, 1832, the case being brought, in course,
before the superior court, it, after reciting the foregoing judg-
3500 INTERNATIONAL ARBITRATIONS.
ment and the action on which it was based, adjadged as fol-
lows :
"'Administering justice in the name of the republic and
under the authority of law, it is hereby declared and adjudged
that the decision of the treasury court (brought up in consul-
tation) is approved of and affirmed.
"'Let the record be returned to the treasury court with the
proper certificate.'
"Pursuant to the judgment Idler applied for payment. He
was refused by the secretary of the treasury on the ground
that the judgment was a nullity, the inferior courts having no
jurisdiction of the case — only the supreme court of justice
being vested under the constitution, with authority to try it.
"Under a system there prevailing, this question was taken
before the supreme court of justice and decided adversely to
the government, December 6, 18;52, The court, on a review of
the case from its inception, found and adjudged as follows :
" ' The supreme court, therefore, considering the stage reached
by this case of liquidation of accounts does hereby find and
hold that the liquidation made settles forever this matter, and
that there is no foundation of law upon which to base the plea
of nullity for want of jurisdiction which has been set up, for
the following reasons: First, because there has been no dis-
pute about the validity of the contracts, which is the case in
which, under No. 5, article 147 of tlie constitution, this supreme
court could have exercised jurisdi(*tion in the first instance;
second, because both parties have consented to have the case
settled as it was, without at any time having set up the plea
of want of jurisdiction ; and, third and last, because, under the
said law of May 1st, article <S0, thejuzgados de letras have full
and ample power to take cognizance of and decide all cases in
which the treasury isintercsted cither as plaintiff or defendant;
"'Whereupon, administering justice in the name of the re-
public and under the authority of the law, it is hereby declared
and adjudged that the pleas of want of jurisdiction and nul-
lity raised by the executive should be, as they are, overruled;
and that the claimant has his right free to act as is proper in
the condition of the case.'
"Resort by the treasury was then made to the council of
government, an advisory executive body of nine members
embracing the vice president and members of the cabinet.
On March 1, 1833, it adopted this resolution:
'^^ Resolved by the council^ That the government be advised
not to issue any warrant for the payment by the treasury of
Venezuela of the sums which Mr. Jacob Idler has been ad-
judged to be entitled to recover, (but) to suspend the payment
of the said sums, and to reserve the right of the said Jacob
Idler to present his claim when the ]>lcnipotentiaries who are
to be appointed to make the proi)er division or apportionment of
the debt of Colombia shall have met and commenced their
labors.'
CONTRACT CLAIMS, 3501
"Again the case went before tlie supreme court of justice to
test the validity of this action, when on the 25th of April
1833 it decreed that—
"'No attention should be paid to the resolution, * * •
because otherwise the validity and strength given by law to
the final decisions of the courts of justice of competent juris-
diction, upon full knowledge of the facts and the law of the
case, and in faithful compliance with the precepts of law,
would be weakened aud destroyed.'
"Idler, still unable to secure payment, returned home after
an absence of ten years, and applied to the President of the
United States for relief.
"Then began the diplomatic history of the case, not neces-
sary to be gone into. {Suffice it to say, almost every, if not
every, administration from Jackson's to Grant's contributed to
it, under the almost constant stress of urgency by the con-
tractors or their descendants,
PraeAM of Burtitiiti "P^i^diug the representations of the Ameri-
. T-*g^---, ** can charge (Vaf aires at Caracas, the Venezue
m wgmixL j^^ Government applied, January 14, 1830,
through a fiscal, specially appointed in the place of the regu-
lar fiscal for the occasion, to the supreme court of justice for
the benefit of the ancient remedy of restitutio in integrum in
the Idler case — that is, for an order to annul the judgment
and proceedings referred to so far as should be deemed bene
ficial to the government. It is proper to note that in*1834--35,
the government, through its council of government and
treasury, had, without notice to Idler, addressed communica-
tions to the supreme court of justice on the subject, in criti-
cism of the judicial action had, and in rediscussion of the
questions involved and decided in the case. In one of these
letters covering 07 foolscap pages, dated June 27, 18;i4, but not,
it seems, transmitted till September, the court is told that its
final decision of December 0, 1832, affirming the jurisdiction
of the treasury court, *only proves that it never entered into
the examination of the documents, nor gave due attention to
so important a casef.' In another place: 'In view of the result
reached * * * no one could fail to attribute the lack of
success to inattention or lightness of mind of the courts.' Of
this communication the fiscal ad hoc in his application to the
court says :
"'The analysis of the proceedings, which is found in the
report of the council of government, transmitted to your most
excellent court on Sei)tember 18th, 1834, was made upon exami-
nation of the judicial record, and of all other documents re-
ferred to by it, and it is so extensive, so correct, so methodic,
and so enlightened in everything regarding the facts that the
undersigned feels himself relieved from the necessity to report
the results of the examination which he made by himself.'
"Two of the four judges of the court excused themselves
from sitting in the hearing of the application — one because
i
3502 INTERNATIONAL ARBITRATIONS.
of bis former action, the other for caase not stated. The two
remaining: judges filled their places by appointment from the
Caracas bar for this case, February 1-5, 1836. The tribunal
so constituted, on the 27th February 1836, issued this order:
" 'Considering that, as it appears from the statement of the
attorney fiscal applying for the benefit of restitutio in integ-
rum against the sentence of September 18, 1832, confirmed
by that of October 1st of the same year, in virtue of which a
balance is found in favor of said Jacob Idler against the State,
it appearing from the proceedings that he is absent from the
country, without anything having been said as to his earli-
est return, and that the resort appealed to constitutes a 7iew
action or instance in which he must be heard, let him be sum-
moned through the Gazette in order that, witbin sixty days, he
may appear in person, or by proxy under instructions or re-
tainer, subject to the orders which may be called forth; and,
without prejudice of what has been said, and not to delay the
course ot* this business, Dr. Felipe Fermin de Paul is appointed
temporarily to act as attorney for him, keeping in mind that it
appears from the record of the i)roceedings that this latter has
counseled and assisted him in the preceding UM^tauce J
"June 7, 1837, the suiireme court for the case issued letters
rogatory, so called, to the United States district court at
Philadelphia,
" 'Requesting that notice be given to a certain Jacob Idler,
residing in the city of Philadelphia (the son of Jacob Idler),
that he be and api)ear by himself or by his attorney before the
said supreme court of Venezuela at the city of Caracas, within
seventy days, in a certain suit instituted or promoted against
him by the fiscal attorney of the said rei)ublic lor the reversal
or restitution in integro of a sentence or decree given in his
favor and against the treasury of Venezuela.'
"The notice actually reached Idler only twelve days before
the expiration of the time limited for his appearance, when
there were no means of reaching Venezuela in time. He did
not appear, or authorize anyone to appear for him in the case.
" The supreme court for the case rendered a decision Novem-
ber 4, 1837, on said application, denying its allowance for want
of original jurisdiction to grant the remedy. It held : » • •
"'This supreme court has therefore reached the conclusion
that the right and power to grant the remedy uf restitutio in
integrum J m the first instance, docs not belong to it. Law 3, tit.
25, Fartida Third, provides that the action l)y which the nulli-
fication of a judicial decision through the remedy of restitutio
in integrum is sought for must be brought before the same
judge who rendered the judgment. The jucz dc letras of this
city was the one who rendered the decision against which the
remedy of restitutio in integrum is now invoked, and the supe-
rior court was the court which a[)proved that judgment.
CONTRACT CLAIMS. 3503
"'Whereupon, administering justice in the name of the
republic and under the authority of the law, it is hereby de-
cided that the jurisdiction over this new action or incidence of
restitutio in integrum, invoked by the lawyer acting as fiscal,
belongs to the courts which rendered the decisions against
which the remedy has been invoked {corresponde a los tribunals
que han librado las determina<nones que causan el reclamo) ; and
therefore let the record be returned to the superior court of
the second district, a copy of this decision being left here,
and let the proper notice be given to the executive.'
" Following this, the superior court of Caracas, if the opinion
of the supreme court for the case can be looked to by us under
the circumstances as establishing the fact, rendered a decision —
"'Granting the remedy of restitutio in integrum against the
decisions of September 18th and October 1st, restoring the
whole subject to the condition in which it was on the 31st of
August 1830, and condemning Idler to pay the judicial tax
and a portion of the costs.'
"On appeal, the opinion recites, from this judgment of the
superior court, taken by the attorney so ai)point€^ and joined
in by the acting fiscal, the sui)reme court, on consideration,
affirmed the judgment in these terms:
"'In consideration of the above, administering justice, and
under the authority of the law, it is hereby adjudged and
decreed that the decision iigainst which this appeal was taken
is affirmed in every respect.
" ' Let the record be sent back to the court below after a
certified copy of the present decision is made and filed in the
chancellor's office.'
"No record of the decision or procee<lings of the superior
court in this behalf has been presented to the commission; nor
has there been any showing or allegation of its loss.
" It is said outside the record that the superior court ren-
dered its judgment December 20, 1838.
"Twelve days after the action of the supreme court the
council of government, Mn compliance,' to use its own lan-
guage, 'with this decree [thatof August31,1830,beforequoted],
to the date of which the case has been restored,' sent the case
to the Colombian commission sitting at Bogota, under the
treaty of 1834 between Venezuela and New Grenada, for the
adjustment of their affairs mayle necessary by separation.
"The commission returned it with the statement formulated
by resolution and hereinafter quoted, adopted April 17, 1839,
to the effect that it had no jurisdiction, and that nothing
remained to Idler but to pay what he owed.
" So ended the proceedings relative t<o the claim of Jacob
Idler and associates before the Venezuelan courts, to be resumed
in the high court of diplomacy, where the case had received
comparatively little attention since 1836."
f
3504 INTERNATIONAL ABBITBATI0N8.
The case was argued on behalf of Yene-
AxKunentiof CoanfeL zuela by Mr. S. F. Phillips.
It was argued on the part of the United
States by Mr. Ashton, who submitted two printed briefs, and
by Mr. Crammond Kennedy, private counsel.
A si)ecial brief for the claimant, on the process of restitutio
in integrum^ was submitted by Mr. J. I. Kodriguez.
The opinion of the commission, as delivered
Opinion of Commii- « -«# t •j.s.i j* h
' T**i by Mr. Little, was as follows:
noner Little. "^ '
'' The case presents a number of questions
which have been exhaustively and ably argued on both sides.
Among them are :
"How far are these Judgments to be accepted as binding in
the proceedings before us?
" Was the court organized for the Idler case in 1836 a legal
body; if not, were its judgments valid!
" Did the remedy o\'reHtiiuiio in integrum pertain to Venezuela
as to the Idler case! If so, did the proper court obtain juris-
diction in the premises?
" Was the general effect of the proceedings in 1836-1839 a
denial of justice? If so, should the judgment of 1832 be
allowed to stand; or is it atfe(*te(l with fatal infirmities?
*' These questions will now be considered.
to Final " ^ state undeniably has the right to deter-
iT T'^\ * ' ^""*^ ^^^' 'tself through its own chosen media
to administer justice within its own territory (subject, perhaps,
to certain humanitarian principles not at all involved here);
and its action is entitled to the respect of other states.
"The sui)reme court of justice, being vested with the judicial
power of Venezuela, had and has the right to determine the
jurisdiction, including its own, of the courts of that country
and the state of the law pertaining to matters brought within
their cognizance. An<l its decisions duly and regularly made
are binding u|)on parties and privies, although citizens of
another country.
»' A judgment duly and regularly made implies jurisdiction
of the subject-matter and of the parties, and does not in a gov-
ernmentof law involve adenial of justice, technically so called.
But it does not follow that one state will always enforce or
give effect to the judicial decisions of another. Mr. Wheaton
says:
"*The most eminent public jurists concur in asserting the
principle that a final judgment, rendered in a personal action,
in the courts of eomjuivnt jurisiUvtion of one state, ought to
have the conclusive effect of a rvn adjudicata in every other
state, whenever it is pleaded in lieu of another action for the
same cause.
"*But no sovereign is bound, unless by special compact, to
CONTRACT CLAIMS. 3505
execnte within his dominions a judgment rendered by the
tribanals of another state; and if execution be sought by suit
upon the judgment or otherwisej the tribunal in which the suit
is brought or from which execution is sought is, on principle,
at liberty to examine into the merits of such judgment, and
give eflfect to it or not, as may be found just and equitable.
* • * A foreign judgment is prima facie evidence where
the party claiming the benefit of it applies to the English
courts to enforce it, and it lies on the defendant to impeach the
justice of it, or to show that it icas irregularly obtained. If
this is not shown, it is received as evidence of a debt for which
a new judgment is rendered in the English court and execution
awarded. But if it appears by the record of the proceedings,
on which the original judgment was founded, that it was
unjustly or fraudulently obtained, without actual personal notice
to the party affected by it ; or if it be clearly and unequivocally
shown by extrinsic evidence that the judgment has manifestly
proceeded upon false premises, or inadequate reasons, or upon
a palpable mistake of a local or foreign law, it will not be
enforced by the English tribunals. The same jurisprudence
prevails in the United States of America in respect to judg-
ments and decrees rendered by tribunals of a state foreign to
the Union.' (Elements Int. Law, 205.)
" Vattel lays down the rule that —
<* < When once a cause in which foreigners are interested has
been decided in form the sovereign of the defendants can not
hear their complaints. To undertake to examine the justice of
a definitive sentence is an attack on the jurisdiction of him who
has passed it. The prince, therefore,' adds the author, by way
of qualification, ' ought not to interfere in the causes of sub-
jects in foreign countries, and grant them his protection, except-
ing in cases where justice is refnsed, or palpable and evident
injustice done, or rules and forms openly violated, or, finally,
an odious distinction made to the prejudice of his subjects, or
of foreigners in general. * * * In consequence of these
rights of jurisdiction the decisions made by the judge of the
place within the extent of his power ought to be respected and
to take effect even in foreign countries.' (Law of Nations,
bk.2, §84.)
'< His editor, the eminent Mr. Oliitty, thought it proper to
add a note to this passage, as follows:
" ' This principle appears to be now settled by the law and
practice of nations, but^ nevertheless^ subject to certain general
wholesome rules, essential to be adhered to in order to pre-
vent the effect of partial and unjust sentences and decisions.'
" An international tribunal, it is believed, should give the full
measure of respect and consideration to judicial decisions in
the states establishing it that each would give, under the
public law, to those of the other.
" Bearing these principles in mind, let us turn to the record
of 1836-1839.
i
3506 INTERNATIONAL ARBITRATIONS.
" The first thing that engages attention is the organization
of the court. That there is a facility of substitution as to
judges in civil law courts not found in countries where the
jury system prevails may be true. But such change is
believed to be always regulated by law. We have not learned
of any law authorizing the substitution of two members of
the bar for two out of the four judges of the supreme court
of justice, made February 1-5, 1830, to try the Idler case.
Why any change at all was necessary is not apparent. It is
true one of the judges excused himself because of his former
action in the old Idler case. But this particular question
had not been before the court, either in the old case, or, it
would seem, in any other, and of course the court had not
acted upon it. And even it' it had, that would seem to be a
reason why the judges should sit here rather than decline.
They were so umch the better advised. What, if any, opin-
ion they expressed in answer to the communications by the
government, in 18.'M-35, on the subject does not appear.
But it can not be that a preconceived opinion of the law
worked a disqualification in a judge in Venezuela, even as
early in her judicial development as 1836.
" The constitution of 1830, then in force, provided for the
appointment of supreme judges and the filling of vacancies,
as follows:
" ' Art. 146. The judges of the supreme court shall be nom-
inated by the President of the republic to the house of
representatives, three names being submitted for each place.
The house shall reduce this number to two, and shall present
the number thus reduced to the senate, whi(!h body shall
name those who are to compose the conit. The same order
shall be followed in filling vacancies; but if the Congress is
not in session, the executive power, in concert with the coun-
cil of government, shall temporarily till the places until a selec-
tion is made in said form.'
''There was no other provision relative to their appoint-
ment or substitution.
"On the 18th of May 1836, three months and a half after
the change in the pivsonnel of the court had been made^ a law
was enacted l)y the Venezuelan Congress providing:
" 'Art. II. Whenever any judges are absent, co-judges shall
be appointed lor each case or business by the renmining
judges or judge, if the absence is accidental, and the selection
shall be made from among the skillful members of the legal
profession that may be in the ])lace, and, in default of them,
from among the persons living in the locality who possess the
qualifications of representatives in Congress; and where
there is a regular vacancy, the selection shall be made by the
executive power, and until the appointment of a regular
incumbent.'
"But no appointment in the Idler case was made under
this law, and none could have been had it been in force in
February, as the regular judges were not 'absent.'
CONTRACT CLAIMS. 3507
^'But to go back a little. On the 14th of October 1830 the
constituent congress, which formed the constitution of Vene-
zuela, resolved that —
"'The laws and decrees issued by the Congress of Colombia
that have been in force up to the present time, and which may
not be contrary to the constitution or laws sanctioned by this
constituent congress, shall continue to be observed in the
judicial order.'
'•The law of Colombia then in force in *the judicial order'
on this subject appears to have been embodied in the following
parts of the judiciary act passed by the Colombian Congress,
April 13, 1825, to wit:
"^'Chapter IV.
'' * Of the Judges of the High Court and of the Superio-t Courts
of Justice.
" ' Art. 34. When, on account of death, resignation, removal,
or any other cause, there should be a vacancy among the num-
bers of the High Court, the Court shall immediately apply to
the Executive Power through its President, in order that the
vacancy may be temporarily or permanently filled pursuant to
the Constitution. In the first case, the Executive Power will
fill the vacancy within not more tluin six days.
"'§1. In the cases of this article regarding the Sui)erior
Courts, these will immediately advise the Executive Power,
through its President, that he may fill the vacancy temporarily,
and the High Court, in order that it may propose to the Execu-
tive Power for a permanent appointment.
*''Art. 35. The Executive Power will appoint temporarily
those who are to act as substitutes of the judges and attorneys-
general; not only in the cases of the preceding article, but
also in those of sickness or absence exceeding fifteen days,
and in those of susx>ension.
"'§ 1. Thefte temporary and alternate appointments shall never
be made in behalf of permanent Jiscais'' {attys, general),
"^Chapter VI.
^^^ Provisions common to the High Court and the Superior Courts
of Justice.
"'Art. 87. In the cases of disqualification, of disagreement
of opinion among the judges, and in those of a challenge (of a
judge) to complete the re(iuircd number of judges, if there
should be no magistrate (jualified to act, associate judges will
be appointed by absolute majority of rotes.
"*Art. 175. * * * The High Court and Superior Courts,
the presidents of these tribunals, and the Sui)erior judges shall
not exercise other powers than those which are assigned to
them, and the jurisdiction of these courts and tribunals shall a
be limited to the cases prescribed by this law.' J
5G27— VOL. 4 18 ^ ■
3508 INTERNATIONAL ARBITRATIONS.
''It occurs to as to observe in respect of this act:
" If it was in force in Venezuela in 1836-37, ander the reso-
lution quoted, as seems to have been the case, the action of
the government in api>ointing (as was done) a temporary ^daZ
for the Idler case in the supreme court in place of the perma-
nent ^ca{ was illegal, being in violation of the last clause of
article 35.
''The provision relating to the filling of places on the bench
hy judges required for an appointment the concurrence of an
^absolute majority of votes.^ In the Venezuelan court a mi^jor-
ity was threcy whereas tico made the appointments in the Idler
case. As the supreme court for the case was not therefore
constituted under this act, it is unnecessary to consider whether
its provisions extended to such a case. It will be seen that
under the Colombian law where the judges appointed, the
integrity of the regularly constituted court could not be dis-
turbed. Under the action had, it was otherwise. The law
therefore was not only not followed, but its principle was vio-
lated.
"The act of May 18, 1836, was amended by an act of May 2,
1838, and that again March 1^3, 1841, and the cases in which
substitutions might be made on the bench were defined with
particularity. This fact is stated, in connection with the pro-
visions referred to, in support of the belief that the courts in
every detail of organization and for every contingency were
regarded, and were, in fact the creatures of i>ositive law, both
in Colombia and Venezuela, And how could it be otherwise
in a government of law! If courts can be constituted unan-
thorizedly, so can the executive; so can the legislature. Con-
stitutional government would thus be speedily ended.
"Counsel for Venezuela, not asserting legislative authority
for the appointments, seems, if understood, to regard this
method of procedure as not new in common-law countries
even, and instances the courts of assize under the statute of
Edward I. But with high respect, it seems to us the analogy
is wanting. The assizes, more nearly analogous to ma>ters
in chancery appointed for special purposes, sort of aids, as it
were, to the courts at Westminster tor collection of facts in
cases pending before them and for other subordinate pur-
poses, tcere established by Inic^ not a law decreed for a par-
ticular case, but by a general law of the realm for all cases.
"The difficulty is not that the court at Caracas was filled by
members from the bar for this case, or that two judges made
the appointments. But that this teas done icithout the authority
of law. If such a proceeding has a parallel in common -law
jurisprudence it has escaped our notice.
" Venezuela could, of course, constitute her courts as she
desired, but having established them, it was Idler's right, if
his aft'airswere drawn in litigation there, to have them adjudi-
cated by the courts constituted under the forms of laic. There
are instances where the action of tribunals presided over by de
CONTRACT CLAIMS. 3509
/aoto jadges, acting ander color of aathority, has been npheld
apon satisfactory grounds, but we think the doctrine would
not apply in such a case as this. If the Oolombian law of
1830 was in force when the court was organized for the Idler
case, as seems to have been the fact, the judges were pro-
hibited from exercising any ^ other potcers than those which are
assigned to them^^ and as the power of appointment was not
among those assigned to the minority of the courts the acts of
the two judges in appointing the other two ad hoc^ were not
only not under color of law, but in violation of its express pro-
visions. A body so constituted could not have legal validity.
Its acts could not bind absent parties. They would be utterly
void. Had Idler appeared, and consented to the jurisdiction
of the improvised tribunal, a different aspect would be pre-
sented, and perhaps a different question.
^^But, for the purposes of this discussion, let us assume the
legality of the court, without, however, subscribing to the
doctrine that ^natural justice has nothing to say against tri-
bunals thus constituted.'
"Venezuela, to avoid the judgment in favor
Saftitatio in Integ- ^f j^j^.^ fo^ $70,520.11^ in 1832, asserted, in
""*^ 1836, her right, by succession from the Span-
ish King, to the ancient remedy of reHtitutio in integrum^ and
the supreme court sustained the assertion, so far as it had
jurisdiction of the ease.
*'By the Konian law a right was given persons during
minority and for four years thereafter, on due application and
hearing, to avoid contracts and transactions to which they
became parties, or with which th«»y were connecti^d during
their minority, and to be restored to all things lost thereby,
when restoration was shown to be for their benefit. The right,
taking its name, it would seem, from that of the writ under
which it was enforced, and which succinctly defines its own
meaning, was called restitutio in integrum. It seems not to
have been a right attaching merely to the person, but one
inhering in the contract or transaction itself. It was assign-
able and descendible. It extended to judgments in civil and
criminal cases. But we have not observed that it iiertained
to a judgment unless, also, to the cause of action on which it
was based.
''This right or benefit was at length extended to corpora-
tions, the church, and the king. But in all such cases appli-
cation for its enforcement had to be made to the proper
authority in due form within four years of the transaction to
be avoided. There was one unvarying exception or bar to the
enforcement of the right by one recently a minor, namely:
* When, after having become of age, he either expressly or
tacitly approved of the transaction.' And it is believed the
principle was of universal application wherever the right pre-
vailed. An assent to the transaction once completed by a per-
son enjoying the right and competent to assent was a bar to
3510 INTERNATIONAL ARBITRATIONS.
the remedy. (See Mackeldey's Eoman Law, § 228 et 8eq» and
authorities cited.)
" For centuries after the Eouian Empire the right was recog-
nized in civil-law countries, among them Spain.
*' It was this minor's right or remedy which the Venezaelan
Government sought wherewith to defeat the Idler judgment.
<* Were it our province and necessary to determine whether
that royal prerogative passed from the Spanish king to the
Venezuelan Kepublic, the very lucid arguments of learned
counsel would, not improbably, render the task a compara-
tively easy one. But we do not feel called on to enter so com-
prehensive afield of inquiry. The(|uestion here is not so broad.
Let it be conceded, for the argument, the right succeeded gen-
er»lly to Venezuela; it does not follow that Idler was affected.
'*A moment's reflection will show the benefit was not uni-
versally applicable to Venezuela's contracts, and that her
courts were powerless to make them so. A contract or trans-
action subject to the right had implied in it a condition of de-
feasance and restoration at the option of the privileged party.
It was as though it had written iu the body thereof that the
minor, or king, or other favored person reserved the option to
disaflirm and annul it partially or altogether, and have restored
him all things lost or parted with on account thereof. Could
such a right in Venezuehi, however fully possessed by succes-
sion, affect her contractual or other obligations with other
states! Ilad her treaties implied in them any such condition^
And was the case in any wise different as to contracts with citi-
zens of such states made therein, where the right was not in
vogue f
''These were North American contracts, made at Philadel-
phia, where the right did not obtain. When Venezuela, so to
say, came there to enter into tluMu, she came, as would Great
Britain or any other person competent to contract, with not a
privilege less, not one more. Her right of restitutio she left
behind her. The Philadelphia (umtracts had no condition of
defeasance implied in them. When si^it to Venezuela for ex-
ecution, none were added. No power there, judicial or other,
could engraft it on them. Therefore, as to those contracts
themselves, it is perfectly clear Venezuela had not the right of
refttitutlo in inte<jntm. Unless, c(mse(|uently, the law was that
the right ])eitained to judgments when itdicl not to their bases,
these legal proceedings can not be upheld, even if otherwise
valid.
"To assert such to be the state of the law is to say that
Venezuela, as to the contracts, was an adult, full grown and
stalwart, but as to their enforcement, a — minor! Such a con-
dition, under the ancient Koman law, would seem to have
been an impossibility. While the minor's right might pertain
Xa) contracts and not to judgments upon them, it is not per-
ceived how the converse could be. If the contract itself were
CONTRACT CLAIMS. 3511
for any .cause without the scope of the law's operation, as, for
instance, if it had been affirmed after majority, or the period
had elapsed within which it could be assailed, of course a judg-
ment then upon it must necessarily have been also without that
scope. To hold that wben tbe minor's right was extended to
the king a different rule applied, would be to affirm that in its
transmission it received an important addition — underwent a
material change in principle. The onuft is upon him who asserts
this to prove it. No intimation of the like from any authority
or source has met our notice, unless tbe supreme court must be
regarded as an exception.
"But looking * through the gauze of mere words' to the
substance of its decision interpreted in the light of practical
results, it not only held that Venezuela possessed the royal
remedy as to the former judgments, but as to the contracts on
which they were based also ; for, as we sha 11 x)re8ently point out,
its practi^ operation was to defeat both.
anMtiim to J • "Had the courts jurisdiction as to subject-
j«^ ^v. n ™' matter, and as to Idler, to render the judg-
dietion of the Conrts. . \ . J rj? 4. 4.1.
ments in controversy I If not, they were
inoperative and void.*
"If the proceeding was an * action upon the record,' and not
an independent suit, inter partes, tbe right of Venezuela (as-
suming her entitled to the ancient remedy) to institute the
proce^ing within the time limited can not, we think, be gain-
said. It could not be defeated by Idler's absence. Any rea-
sonable mode of notice in that case would be sufficient. The
modes adopted would, in our judgment, be all that justice
required.
"But if the action was a separate and distinct one, its sub-
ject being merely a judgment instead of a contract or other
particular transaction, then it is just as clear to our minds
that the service on Idler being beyond the jurisdiction of
Venezuela was not sufficient to obtain jurisdiction of his per-
son, and any judgment rendered against him in that case would
be void.*
"Says Wharton, Law of Ev. 3d edition, § 803:
"'A foreign judgment, as we have seen, is always impeach-
able for want of jurisdiction; and hence, for want of personal
service, tcithin the jurisdiction^ on the defendant, this being inter-
nationally essential to jurisdiction in all cases in which the de-
fendant was not domiciled in the state entering the judgment.'
^Scbibsby r. Westenholz, L. R. 6 Q. R. r. 155; Novelli r. Rossi, 2 B. &
Ad. 757; Carleton v. Bickford, 13 Gray, 591; Kerr r. Kerr, 41 N. Y. 272.
See also Furguson t?. Malion, 11 Ad. & E. 179; Cavaii v, Stewart, 1 Stark,
525; Vallee r. Dumergue, 4 Ex. 289.
'Bischoflfi?. Wethered,9 Wall. 812; Penuoyer r. Noft, 95 U. S. 714; iroff-
man r. Hoffman, 46 N. Y. 30; Davidson r. Sharp*^, G Ired. L. 14; Board of
P. W.r. Columbia College vt nl, 17 Wall. 521.
r
3512 INTERNATIONAL ARBITRATIONS.
" Whether, in this case, jurisdiction might have been obtained
as to the rem by some process of attachment or garnishment,
need not be discussed, for nothing of tlie kind was resorted to.
"There is some doubt from the language of the court, Feb-
ruary 27, 1836, just what its view was on this point. It said the
'claim now made' was a hiew action or instance' {un nuevo
juicio 0 imtancia). And it deemed the case of such a character
as that Idler 'must be heard,' and directed him summoned.
"The authorities seem to regard reHtitutio as a 'hew action.'
"Colquhoun, who may be taken as representative, says:
"'Restitution must be prayed and a formal suit commenccMl
in that behalf.' (Roman Civil Law, § 1865.)
"Again —
" ' Restitution may be sought by action or by plea^ and in the
latter c««e every judge is competent who has cognizance of the
principal matter in dispute, whether he be commissary or um-
pire; in the formir case^ however, application must be made
to the judge who is competent in respect of the defendanV lb,
(See Savigney, Private Int. L.320; Bar, Int. L. 213-216.)
''In the view taken, it may be parenthetically remarked that
if reHtitutio would not lie as against the Idler contracts them-
selves, their annulment could not hiive been accomplished by
plea in the old case pending its conclusion; and this fact is an
additional argument against a judgment on such contracts
being assailable by this means.
"The Spanish law and the civil law authorities cited by coun-
sel for the United States, and not necessary to be quoted here,
leave little doubt that with some exceptional cases — wholly
variant from this one — where, irrefragable cause being shown,'
the judge may ex parte, even mero motu, grant the relief, the
action had always been regarded and. treated as an original,
one iiiter partes, to be brought and conducted as any other
ordinary suit. And such indeed may be fairly inferred from
the process and opinions of the supreme court to have been
its view.
"Assuming the proceeding to have been an 'action on the
record,- and the notice sufficient for all it purported to be, there
remains the other question, namely: Whether the action teas
hrouffht in the proper court in time. It is conceded all round,
the supreme court expressly saying, that it must have been
brought within four years from October 1, 1832. The supreme
court had no jurisdiction of the case in the lirst instance, as it
decided when it returned the reconl to the superior court, No-
vember 4, 1837. There is some confusion arising from the deci-
sion as to whether the treasury court or superior court was held
to be the one of original jurisdiction. But as no action was
ever taken in the former, let us also assume the latter was the
proi)er one. Was the suit begun there within the time limited?
In other words, was the case of the fiscal attorney of the re-
public against Jacob Idler brought and pending in the superior
CONTRACT CLAIMS. 3513
court of justice of the second district on the Ist day of Octo-
ber 1836! If not, there was no jurisdiction of the subject-
matter. What evidence is there that such was the fact!
^^ As stated before, there is no record of this proceeding from
that court among our files, and no cause shown for its absence
if it ever existed. There are lull records from it in the earlier
case. Why not also in this later one! The existence of this
record is challenged by counsel for the United States. How
must it then be shown T In municipal tribunals a high char-
acter of proof is required for this purpose.
"Foreign judgments, says the Supreme Court of the United
States, referring to the law, ^are authenticated (1) by an ex-
emplification under the great seal; (2) by a copy proved to be
a true copy ; (3) by the certificate of an officer authorized by
law, which certificate must itself be proi)erly authenticated.'
(Church V. Hubbart, 2 Cranch, 187.)
"In the same case it was held:
"*A judgment certified under the private seal of one styling
himself to be secretaiy of state for foreign aftairs is not evi-
dence; also, that a translation of a foreign judgment certified
by a consul, but not under oath, could not be received in proof
of the judgment.'
" But ' where the original judgment record was destroyed by
fire, a copy of a judgment duly certified by the clerk of the
court by whom the judgment was rendered is proper evidence.
(Nash V. Williams (Cornet v. Williams) 20 Wall. 226.)
"It would not be contended by anyone, wo suppose, that
the recitals of a record in one court would be received in a
municipal tribunal to prove the existence and contents of a
record not shown to have been lost or destroyed of another
court.
" It seems to us, in a case like this, the best evidence reason-
ably attainable should be reciuired before an international
tribunal.
"The recitals of the supreme court do not come up to the
mark, nor does the following, in its final opinion, February 22,
1839:
"*A comparative study of the dates in which the judicial
decisions herein referred to were rendered, and of the date of
the petition of tlie counsel for the state asking for the writ of
restitutio^ will show that the remedy was resorted to, in due
time, within the four years provided for by the 10th law, title
19, part 6.'
" Had the court given dates so that a ^study ' of them could
now be made, the ditliculty would still remain, even though
they disclosed jurisdiction in the superior court. They are
not the best evidence. That is the record (unless shown to
have been lost). If there never was a record, then, in contem-
plation of law, the court did not act. It is elementary that a
court of record (and this was one) speaks only through its
0
3514 INTERNATIONAL ARBITRATIONS.
record. And even where that is produced^ showing on its face
jurisdiction, and the jarisdictional facts stated are denied, it
has been held they may be incjuired into and disproved.
''The Supreme Court of the United States, in Thompson t».
Whitman, 18 Wall. 457, held:
"'The record of a judgment rendered in another State may
be contradicted an to the facts necessary to give the court juris-
diction: and if it be shown that such facts did not exist, the
record will be a nullity, notwithstanding that it nuiy recite that
they did exist.''
''In Penny whit r. Foot, 27 Ohio St. 98, the court said:
'"From a careful review of the numerous cases, we find the
rule now well settled that neither the constitutional provisions
that full faith and credit shall be given in each State to the
public acts, records, aiul judicial proceedings of every other
State, nor the act of Congress passed in pursuance thereof,
l)revents any incjuiry into the Jurisdicticm of the court in
which a judgment offered in evidence was rendered, and such
a judguKMit may be contradicted as to the facts necessary t4}
give the court jurisdiction ; and if it be shown that such facts
did not exist, the record will he a nuUiiii^ notiHthstanding it may
recite that they did e.ristj and this is true either as to the subject-
matter or the person^ or in proceedings in rem, as to the thing,^
"Such is the law in tlie United States, and, we believe, gen-
erally.
'*lf a court's findings in favor of its own jurisdiction were
conclusive in cages coming under consideration before inter-
national or other tribunals, the question of jurisdiction could
never be raised, for its acting at all is e<iuivalent to finding
jurisdiction to art.
'"An alleged judgment,' says Dr. Wharton (Evidence, §
700), 'is oi)en to attactk for want of jurisdiction; for it is a
petitio principii to say that it is uninipeacliable because it is a
judgment, and that it is a judgment because it is unim])each
'able.'
" The evidence satisfies ns that the restitutio suit was not in
the superior court till after November 4, 18;^7, when the supreme
court 'returned' ?V« record in that regard thereto. The sug-
gestion— for contention would be too strong a term — that the
bringing of the suit in the su])reme court, which was without
jurisdiction to entertain it, was its commencement in the
superior court for tlie purpos(\s of avoiding a bar, can not be
entertained. It is sufficient to say tliat before allowing an
effect so extraordinary we shtmld require to see the emu'tment
providing for it, and none has been called to our attention or
by us found. Tlie supreme conit makes no intimaticm that
sucih is the hiw, unless the passage quoted can be regarded as
such. But constructions involving results violative of familiar
princii)les and courses of procedure are to be avoided, and we
can not so regard the finding. The fact that the supreme court
of its own motion sent the record down to the superior court
CONTRACT CLA.IM8. 3515
does not help the matter, for it is immaterial whether the suit
was begun there at its instance or not. The question is when
and whether it was therein instituted.
*' The objection to this record is by no means technical. No
notice, legal or other, was received or sent to Jacob Idler about
the suit in the superior court, the only court having jurisdic-
tion to entertain it in the first instance (unless it be the treas-
ury court, where it never was), as is conceded on all hands.
The letters rogatory directed him to ai)pear in the supreme
court in a suit instituted there. If the summons was legal it
only gave him notice of what that court tn that case — ^not in
another instituted in an inferior tribunal and subsequently
appealed to it- — might lawfully adjudge. The notice directing
him, away in n distant land, to appear in one court when the
business affecting his interests was to be done in another, was
worse than none at all, for it was misleading. Even if no
notice had been required, and one had nevertheless been given,
whose tendei»cy was thus to mislead, we are inclined to think
the act, from the standpoint of justice, would vitiate the whole
proceedings. Receiving the notice in 1837, at Philadelphia,
that a suit had been begun against him in restitutio in the su-
preme court of Venezuela in June 1836, he — charged at most
with a knowledge of the law as it was declared to be — could
well have said to himself, ' L shall not undertake the hazards
of a journey or incur the expense to appear. The court has
no jurisdiction and can not grant the prayer of the government,
and it is now too late to bring the suit in the court which
had jurisdiction.'
''But, conceding jurisdiction of subject-
Denial of Justice, matter and of the defendant, was the alleged
judgment of the superior court (for what fol-
lowed is inconsequential except as a consummation of a wrong
begun, if wrong it was) binding?
" The purpose and effect of the judgment may be judged by
results. It set aside and annulled the old record back to the
prefect's order of August 31, 1830, before quoted, leaving that
to stand in force. That order authorized (whether lawfully or
not is now unimportant) the papers and record in the Idler
case to be sent to the old commission at Bogota, in order that
^said commission may affain liquidate the accounts of Messrs.
Jacob Idler and his associates.' The government at once sent
the case away to a (now) foreign jurisdiction, to a new com-
mission sitting at Bogota under a treaty between Venezuela
and New Granada, of 1834, to adjust matters pertaining to the
separation. Of course it was not the * said commission' which
could < again' liquidate the claim. It shortly answered,
through the Venezuelan member, Mr. Michelena, by resolu-
tion, to wit :
"'Thatthetime within which Idler could have submitted his
claim to the commission of liquidation had expired on the 6th
of August 1829 J and that as the tribunals of Venezuela had no
3516 INTERNATIONAL ARBITRATIONS.
jurisdiction to make the said liquidation, the commission con-
siders itself without jurisdiction to take cognizance now of
this matter, and that the last judicial action taken in Vene-
zuela {restitutio) can not have other effect than to cause Idler to
restore to the Venezuelan treasury what he unjustly received
under the Colombian Government.^ [Report of meeting of coun-
cil of government, Oct. 8, 1839.]
*'The effects the government attributed to the judgments are
stated by its representative, Mr. Romero, to the American
minister at Caracas, July 8, 1840, reaching practically the same
end, as follows:
'** According to the last recent sentences of the superior and
supreme courts, dated December 20, 1839 [1838], and February
2*Jd of this present [past] year, the matter has gone back to
the condition it was in on the 31st of August 1830; that is to
say, to the state of the new liquidation ordered by the intend-
ants Mendoza and Briceno [before August 31st], because it
was at that stage tliat the judge of tirst jurisdiction [juez de
Irtras] unduly retained for the first time [August 2o, 1831]
the expediente and concerted into a judicial and litigious pro-
eeedin(jj what up to that time was treated as an administrative
and economic question of the government.^
"'Therefore, the government of the republic is disposed to
instruct the general treasury and the tribunal of accounts to
proceed to the pending new liquidation, which may be attended
by Messrs. Idler and conipany in person, or by their attorneys,
witliin the time which will he assigned to ihem.'
*'The government thus interpreted the judgments as taking
the case out of the hands of the courts, to be proceeded with
in a nonjudicial — /. e*., * administrative and economic' — man-
ner betore its own accounting otticers of the treasury, as it
might be disposed to direct. That is, in effect, the govern-
ment proposed to decide the Idler case itself!
" The litigation be/ore the courts was put an end to, and thereby
the contracts, in so far as they remained unfulfilled (if there
were any), were for all practical purposes annulled; for the
government's action and reiterated opinion left no room for
question what it would do.
'" We have seen restitutio could not reach these contracts.
It is believed it never contemplated such results as to judg-
ments.
**The supreme court for the case knew — must have known —
that the order of August 31 was impossible of execution, and
had been from the very day of its entry nearly ten years before.
Its affirmance of the alleged superior court judgment annulling
proceedings back to that order, leaving it to stand, could have
had but one purpose — to switch the case from the lines of judi-
cial determination; in short, to dismiss it. We have no hesi-
' ^'It may be noted that tliis view of the law and (diaracter of the earlier
proceedings was uot eotertaiued by the supreme court of justice ou appeal.''
CONTRACT CLAIMS. 3517
tation in saying the effect of these judgments was a denial of
jnstice.
"One reviewing this record, considering the communications
about the Idler case addressed by the council of government
and treasury department to the supreme court of justice, before
the application for restitutio was made, asserting the existence
of the extraordinary remedy in behalf of the government,
notwithstanding its assent to the Cadenas award; the reor-
ganization of the court so as to change its personnel^ and the
substitution of a temporary fiscal for the regular oflBcer, for
this one case, both, too, in violation of the Colombian statute
extended still te Venezuela ; the fact that this was the first
and the last time the republic in its own behalf ever claimed a
right to the ancient remedy, asserted in the right of succession
from the Spanish King, when Spain had abolished it more
than two hundred years before, except in a few cases anion g
which the Idler case could not by possibility be classed; the
final decree exactly in accordance with the prayer of the treas-
urers, in their report ot May 2, 1829, and the wishes of the
government; and tlie practical outcome, namely, the ending of
the litigation and virtual extinction of the contracts so far as
they were not yet satisfied: one considering these things can
not, as seems to us, well escape the conviction that it was the
voice of Idler's opi)onents which found expression in the judg-
ments of 1838 and 1830, and not that either of justice or of the
supreme court of justice.
''A foreign citizen in litigation with a sovereign before his
own courts is entitled to no special favors; but even handed,
or, as Philliniore puts it, 'ordinary justice,' is his right in the
eye of the public law. Tliis Idler did not get. The 'justice'
attemi>ted to be meted out to him, whatever else could be said
of it, was certainly not ' ordinarij justice.'
** Our conclusion is, from the foregoing considerations, that
the proceedings in re.stitntio were, as against Idler, and are,
as against the claimants, a nullity. This is the best we can
say of them.
'*The judgment of October 1, 1832, standing as it does unaf-
fected by the subsequent proceedings, will under the doctrine
above quoted be upheld unless manifestly wrong.
"But it is assailed, (irave cliarges are made against Idler
and associates, which, if true, would disturb its basis. We
have deemed it our duty to look into them with care, so far
as the record here enables us to do so, as well as to examine
the objections otherwise urged against the judgment. The su-
preme court for the case, repeating in substance what the
counsel of government alleged, said in its final opinion:
"'The most singular thing to be noticed in all that has been
done in this case is the manner in which Mr. Idler himself has
acted. Good faith, sincerity, and imrity can never allow any
creditor to liquidate kift accounts nith tico debtors at the same time^
even if the accounts recognize the double origin, unless the
3518 INTERNATIONAL ARBITRATIONS.
credits are divided. lu the present case, Idler, through his
attorneys^ liquidated his accounts at Bogota, and concealed the
true and lawful price to be paid for the muskets.
"'As some of bis claims were disallowed there he came per-
sonally to this city and endeavored to liquidate again his
accounts before the courts, and recover here what was denied
him at Bogota.'
^^As to the double liquidation:
''The occasion for the two settlements was evidently a dif-
ference between Idler and his associates, dating back of 1823.
" Duane, 8i)eaking of his failure to get the money on his
liquidation, says:
"*To my surprise, on presenting myself at the treasury, I
was informed there was some difficulty. It was not precisely
explained, and i)erhaps it was a false delicacy which prevented
them informing me wliat I subsequently was told — that Messrs.
Kneeland, the partners of Mr. Idler, had sent out a Mr. Els-
worth with powers which so far rendered my agency inopera-
tive. * * ♦ It is not for me to narrate the scandalous in-
trigues and bad faith of Messrs. Bogart i^' Kneeland. This
mission of Mr. lOls worth produced the ell'ect of arresting the
whole transaction and preventing my obtaining the whole
amount of the liquidation. » * *
'''It has been mentioned to me by Mr. Idler that the other
parties in the transactions have alleged that I had been in-
structed by Mr. Idler to remit more than his share of money
or assets had I received them, and he requests me to state the
facts, wliich I cheerfully do. During the whole of the inter-
course between Mr. Idler and myself, in conversation and in
writing, he uniformly directed me to see remitted his own pro-
portional part to him direct, and the rest to the associates in
New York.' (Document 8G.)
"This shows a difficulty and its cause.
"In May 1823 Idler went to Caracas to eft'ect a liquidation
with the intendant. And afterward (date not given) the as-
sociates sent Ogden to Bogota. These were unmistakably
independent movements. The power of attorney to Ogden did
not purport to give any authority whatever to deal with Idler's
interests.
"The evidence leaves no doubt upon our minds that he had
nothing to do with Ogden's mission till the liquidation was
made; and it is altogether probable that neither Ogden nor
his clients knew just what Idler was doing at Caracas. The
fa<;ts intrinsically support this view.
"That they were all alike interested to get the last cent due
on the contracts allowed, goes without sayiiig. What motive,
then, could the associates hav'C had in piescnting, or he in de-
siring or sulVering them to present, a smaller claim at Bogota
than he himself was urging at Caracas? If there were to be
two presentations every interest ccmspired to make them alike,
and up to the last dollar covered by the accounts under liqui-
CONTRACT CLAIMS. . 3519
dation. That they were not alike is evidence of nouiuter-
course, of independence of action,
*'That such was known to be the relation and situation be-
tween idler and his associates is shown by the address of the
council of government sent the supreme court of justice in Sep-
tember 1834, On pages 51-2 of that document is the following :
*' * Said liquidator fCadenas] ought not to have confounded
with the account of idler that of his ancient associates. From
the 16th of March 1822, the date of his cited instructions, he
gave the order to his attorneys to separate his interest from
that of his associates. These agreed likewise to the same (fol.
51 and over [not before the commission]), in consequence of
which Bogart and Kneeland named as their special attorney
Henry Ogden, and Jacob Idler, William Duane [this is a mis-
take, for Duane went out as the agent of all parties, Bogart and
Kneeland paying him $300 in cash toward his expenses (see
letter to intendant, November 5, 1822, and Document 86)], next
Isaac Powles, and finally, Santos Michelena. Each one and all
acted independently.^
"It may be inquired how there could be a diflFerence in the
accounts, both parties getting their information from a common
source — the contracts or books! In this way: Idler was the
chief business man in the concern. He had the making of the
contracts and supervision of the business. Naturally, he would
have an intimate knowledge of detail suri)assing theirs. It was
this knowledge that enabled him reasonably to preserve to the
firm what the others would have lost, and what would not al
ways readily find its way upon the books. Take, for instance,
the charge item of duty drafts in No. 4, Idler's liquidation,
$24,340.54. He knew the discount should be 25 per cent, and
])i'0cured the liquidation accordingly. The associates, through
their attorney, took them at a 20 per cent cut. Here he saved
the firm $1,217. So with the item of 553 bales of tobacco in
No. 2, he procured the liquidation at $5,419.42, when the gov
ernment had charged and probably the Bogota liquidators
allowed (though there is some uncertainty about it) $8,9J1. If
our surmise be correct, he here saved over $3,500 to the firm.
Then, again, his familiarity with the business would enable him
to exclude unjust charges. In this way it is easy to see how
the liquidations involving unsettled items, made without con-
c^rtj one with a thoroughly infornied i)arty participating, and
the other without this advantage, would necessarily vary.
Only where there was collusion or concert of action ^ould
there be sameness.
"But counsel for VenezAiela undertakes to show that Idler's
accounts liquidated at Caracas, November 21, are substantially
those of Ogden settled at Bogota, December 31, 1824, barring
a difference in disconnt and interest. It will be remembered
the balance found dne tlie con tractors in the former was
$164,763.89, and in the latter, as paid, $157,458.50; difterence,
$7,305.33.
3520 INTERNATIONAL ARBITRATIONS.
"There are four accounts in Idler's liquidation, the Elenaj
the Wilmotj and the two Endymion invoices. In Ogden's there
are two; that is, his No. I contains Idler's No. 1 and parts of
his Nos. 2 and 3. Idlers No. 4 and Ogfden's No. 2 are the same,
except a slight variance as to interest. So that the difference
between the two aggregates, as is apiiarent on inspection of the
liquidations, pertains to Idler's Nos. 2 and 3.
*' Tlie learned counsel has apparently accounted for this
difference, and established the identity of the accounts liqui-
dated at the two i)la<tes (brief, i)ajie 39).
" His calculation shows the aggregate indebtedness accord-
ing to the Idler accounts, shorn of errors of discount and
interest, to be $157,4')5.31), while those of Ogden stand at
$l.>7,4r)8.57 — only $0.82 between them, which is unimportant,
as he says, *' De minimis lex non curat !^ But in Idler's liquida-
tion, account No. 3, there are two items of credit to the gov-
ernment, August 10, 1823, oneof $I,4()3.5() and one of $12,385.33,
amounting together to $13,848.89, and one charge item oi
$(),336, May 20, 1821, not to speak of others, not found in the
Ogden settlement, which are entirely overh)oked in, and left
out of, his (calculations and process of identification!
*'How Ogden's liciuidation was made up in detail can not be
determined frcmi the evidence sent us, because his No. 1 was
formed, as expressly appears from tlie accounts, by resuniing
Duane's liciuidation where it had reached the aggregate indebt-
edness of $92,702.93, witliout giving th.o items constituting
such aggregate, and adding two, and only two sums, aside
from interest thereto, namely, one tor 8291.20 paid Lemon in
cocoa, and the otlier for $7,077.02 allowed for Elnia loss
(Idler's No. 1.) The demurrage item ($0,330), as appears from
Duane's statement, was not included in his settlement, and
the accounts on their face show the two credits ($13,848.89)
were not eonsidered at Hogota. So that no inference to sup-
port the charge of double ])resentation based upon the sub-
stantial identity of the accounts can be drawn.
^^ As to concealment of price of muskets.
''It is (charged that Idler in the li(|uidation at I5ogota 'con-
cealed the true and lawfnl i)ri(eof the muskets/ tliereby beiug
allowed $12 each therefor instead of $7.
''This seems a strange accusation. Ilow Idler, even if he
had to do with the Ogden licjuidation, which he had not, could
be supposed to have eonccaled i'vom the government the knowl-
edge of a transaction had with that government itself and at
its demand, is dillicnlt to nn<lerstand. The liiusket account
was of more than three years' standing. I'or the government
to have it at all would be to have it with the reduction in
price noted, that having occurred at the receipt of the arms in
Venezuela, the Vice-President Soublette himself representing
the government in the matter.
" lUit it is unnecessary to s])eculate. The i)roof is direct and
CONTRACT CLAIMS. 3521
unmistakable that the board of liqaidatiou knew of this busi-
ness two years before.
*' Duane, speakiug of the progress he had made in securing
a partial liquidation and a certificate therefor, says [document
86]:
" 'I was proceeding to negotiate for the muskets, seeing the
strong ground upon which I stood, and was assured by the
president of the board of liquidation that no difficulty presented
itself to my settling the muskets and demurrage damage accounts.^
"That charge is the merest gratuity.
" J.« to Idler'^s conduct before the courts at Caracas:
"It is charged that Idler, failing at Bogota to have some of
his claims allowed, went to Caracas and endeavored to liqui-
date again his accounts before the courts, and to recover there
what was denied him at the former place. It would be difficult
to put more error in as few words.
"Idler's items in contention, except perhaps the single one
of $291.20, a charge-back of an alleged error, so far as not
allowed by them, appear not to hav^e been before the Bogota
liquidators at all. In Febrnary 1825 he endeavored to have
them brought before the board, but it was too late and it was
not done. As for going to Caracas 'to liquidate again his
accounts before the courts,' the fact was otherwise; we might
say oppressively so.
"It was not Idler, but the i)nblic authorities who instituted
the litjuidation before the courts at Caracas. They compelled
it. The counsel of government, in the very communication
sent the court, 1834, before relerred to, say (page 6) on this
subject:
"'The aftair was reputed concluded not only by the govern-
ment but likewise by all the associates, when, at the commence-
ment of the year 1828, the intendancy of V^enezuela observed
that the liquidation winch had been made at Bogota * * *
was, on the one hand, that Idler and associates were unjustly
credited, and ui)on the other not debited or charged for various
sums which had been received at the custom house of La
Guayra. It was for this powerful reason that said intendancy
opened the subject to a continuation.'^
"After the subject had thus, by the government, been
opened up 'to a continuation,' Idler did not object to going to
Bogota. On the contrary, as has been seen, he wanted to go.
The same communication says, page 11 :
"'Nor did Idler himself make any oppOwsition at first that
the documents should ])ass to the government of Bogota, so
that in his writing (folio 78) h(^ only asks that this measure
should be delayed until he could present other observations
and documents which he solicited for the imrpose. So that (he
only objection made icas his r( fusing to give the security which
was demanded of him that he might leave this city to make a
new arrangement of his accounts at that capital.'
r
3522 INTERNATIONAL ARBITRATIONS.
''What was the security required! Either that he give
'bonds for the $37 ^79:"), 22 for the balance now standing against
hiniy^ or that he \tile the original bills of exchange drawn in his
favor against the Englinh loan.^ The bills he had sold, and he
had been sued on them as iiidorser in Bogota. Their de])08it
was an impossibility to him. To have given bonds in a strange
land for the payment of that sum of money >va8 probably
equally out of the question.
"The order was i)ractical i)rohibition to him. It has already
been seen that before this, direction had been sent to Bogota
by the intendant stopping the li(iuidation there.
'••It seems from the same communication that he, being com-
pelled to go into the subject — for the government itself was
attacking the Bogota liiiuidation — desired 'that this operation
should be made anew^^ and the public authorities assented,
''Under the circumstances, how the complaint under consid-
eration could have been made against Idler on any hyi>o thesis
of intelligence and Just purpose, passes our understanding.
The only alternative left him, short of suffering what he mani-
festly regarded gross injustice, was to liquidate and litigate
the best he (!Ould in the Venezuelan courts
''It is said he received at Bogota sums that had been paid
him at Caracas. It is a sutlicient answer to this to say that
every dollar paid at Bogota was credited on his account, which
was adjudicated.
'•There is this appearance, however, of truth in the charges
of concealment and double ])aymeiit that should be mentioned.
Theie were two li(] nidations in fact. There were credits On
Idler's that were not on Ogden's. Idler an<l the associates
took, through their attorneys, «all that was found due on the
latter li(piidation without deducting such credits. But it must
be renieml>ered that Idler rejected the accounting as incorrect
and unauthorized. lie evidently received the amount found in
his favor as so much on acconnt; and it may be reasonably
supposed that wiicn the associates learned of the considerable
amount still claimed to be due not included in the liquidation
and not known to them at the time, they received their pay-
ments as on account also. The government conld not be hurt
if it received credit for all that was i)aid, as it did, especially as
it did not regard itself bound by tlie liciuidation, but consented
'to have the case settled as it was.'
"It is charged that these later items were an afterthought;
that had they been honest they would have been earlier pre-
sente<l. Not necessarily so. There had been long and V(»x-
atious delay about the payment of a substantially uncontested
account current, with results of great hardship.
"One can easily see that business prudence, under the cir-
cumstances, might have suggested the delay for a season of a
claim for damages entirely well founded, so as not to be the
occasion for further procrastination. The more i)robable rea-
son for delay as to the Barinas tobacco claim is, that Idler
CONTRACT CLAIMS. 3523
hoped all along to get tbe tobacco. In fact, promises were
miMie to him to that effect as late as 1824. Had they been ful-
filled, of course there would have been no claim on this score.
There is evidence, however, of aft endeavor to procure the
adjustment of these items before the payment of the Bogota
liquidation, but it is unnecessary to pursue the matter.
" It is sufiicient, in fine, to say the evidence before us does
not support the charges referred to against Jacob Idler.
."There is another matter that should not go, perhaps,
unmentioned. The Venezuelan Government said to the Amer-
ican minister, in 1840, that there was corruption connected
with the Idler judgments. But it made no specific charges,
called to account none of its officers, or furnished any proof.
The record is silent otherwise on the subject. CTnder such
circumstances, this charge, never intimated during the long,
weary progress of the case, is entitled to no consideration.
** Turning now to the specific objections to the judgment:
"It is said in substance that the judgment or claim was
against the wrong party; that if anyone was responsible to
Idler it was Colombia and not Venezuela.
"Undoubtedly the action was begun by the Colombian
authorities, and had the point been made at the separation,
what the action of the courts would have been can only be
conjectured; but it seems not to have been made. On the
contrary, the evidence transmitted shows, as one letter puts it:
" * After their separation the Government of Venezuela went
on with the suit more vigorously than ever.'
" It was too late after defeat, at the end of 1832, to make the
question. It can not be overlooked, in this connection, that,
when it was supposed in 1840 the restitutio proceedings had
canceled Idler's judgment and restored in effect the treasury
liquidation against him for $37,795.22, which then with interest
amounted to over $60,000, Mr. Michelena, the Venezuelan
plenipotentiary at Bogota, expressed the opinion, in which the
council of government concurred j that the whole sum^ when paid
in, would belong to Venezuela. Nor is it to be passed by, that
the firm with which the same Mr. Michelena was connected,
the Brothers Michelena of Caracas, having obtained in due
course of business one of the drafts of the Colombian Gov-
ernment for £2,000 on London, with which Idler had been paid
at Bogota, and which were returned protested as before told,
brought suit thereon in Caracas against the Government of
Venezuela, and on the 19th of December 1831 obtained a
judgment in the supreme court for $14,008, which Venezuela
promptly paid.
"In the course of the proceedings the fiscal said:
" ' When the state [which nominally was Colombia, but actu-
ally taken as Venezuela] or fisc enters into any agreement with
private individuals, it is and must not be regarded as their
superior, but as their equal, because a reciprocal contract
equally binds all the parties according to the primitive and
5627— VOL. 4 19
3524 INTERNATIONAL ARBITRATIONS.
constitutional law of every reasonable society' — a doctrine,
had it been applied in 183t>-18;i9, that would have saved this
controversy.
"It will be noted that Venezuela herein, through its courts
and treasury, not only, as it would api)ear in effect, recognized
her individual obligations in these transactions by discharging
a bill growing out of them to which on its face she was not a
party, but that in her refusal to pay Idler's judgment rendered
less than a year later, made a discrimination as against a for-
eign citizen in favor of her own, a thing prohibited by the
public law.
" The reason given by the government for this action, to wit,
because, ' when Venezuela made her last x)olitical transforma-
tion [1830] it I the bill] had heeu'radicated in the customhouse
by the sj)ecial order of the (lovernment of Colombia, issued
since the 20th of July 1829,' does not seem to us satisfactory,
nor was it the ground on which a recovery was sought, nor that
of the Judgment of the court.
"The suit was brought ai)d the judgment and payment oc-
curred after Venezuela's separation from the rest of Colombia,
and before the adjustment of the latter's debt among the con-
stituent States.
" It has been held that conditions attached to a grant of
land even by a prior sovereign, and which are inconsistent with
the policy of an after- acquiring state, will not be enforced by
such state. (United States r. Vaca, 18 Howard, 55().) It is
not perceived upon what principle, in the absence of contract,
an order of the Colombian Government to pay certain of its
indebtedness from the revenues of a particular one of its ports
would be operative after that i)ort had i)assed into the hands
of another state.
"But waiving all these considerations and
^TT *♦ ^ 1^0^ '"listing nov\^on the doctrine laid down
rf^ "" ^y ^^''^"^ ^^ ^^^^ ^^^^^ ^^ Wheaton (sec. 30, note
®™ • 18), to wit, That where a state is divided each
new state becomes liable for all the debts of the old one, as in
case of union of states the consolidated community becomes
responsible for the obligations of each constituent — was Ven-
ezuela liable as upon contract made by herself f She was not
if her political existence became extinct December 17, 1819.
*' Let us look at this for a moment:
"On the 15th of February 1811) the Congress of Venezuela,
convoked by Bolivar, was installed at Angostura. There were
thirty deputies in the body, * nominated by the free part of
Venezuela,' twenty-six of whom convened and pro(;eeded to
organization and business.
"On the 17th of December ensuing ^the Sorereign Congress
of Venezuela, to whose authority,' using the language of the
l)reamble, 'the towns and people of New Granada, recently lib-
erated by the arms of the republic, have voluntarily agreed to
subject themselves,' adoi)ted the ' fundamental law of the Re-
CONTRACT CLAIMS. 3525
public of Colombia,' so called, providing a scheme of govern-
ment or constitution for the proposed state. Among its pro-
visions were the following:
"*1. The republics of Venezuela and Xew Granada from
this day are united in one single state under the glorious title
of the Eepublic of Colombia.
• • • • • . • •
"'4. The executive power of the republic shall be exercised
by a president, and in his absence by a vice* president, both
named, ad interimj by the present Congress.
"*9. The constitution of the Eepublic of CoTombia shall be
formed by the General Congress, to which shall be presented,
in the light of a project^ the one decreed by tbe present Con-
gress, and which, together with the laws promulgated by the
the same, shall immediately be put into execution, ^*'hy icay of
an essay. ^'^
^^ General Bolivar, who had resigned to this Congress his
assumed dictatorship of Venezuela, and become, as he ex-
pressed it, ^nothing more than a simple citizen,' was designated
by the body as President ad interim of Colombia and continued
in the chieftainship of the military forces.
''Francisco A. Zea, the president of Congress, by its author-
ity, in promulgating Hhe fundamental law,' January 20, 1820,
issued a manifesto to the ^people of Colombia,' from which
these extracts are taken :
'''This work [that of union] so deservedly merited by you
is already finished; your political concentration is verified and
the fundamental law conferring it, and which, through me.
Congress offers for your supreme action^ will fulfil all your
desires, will promote the interests of all, will cement upon an
immense and lasting basis your index)endence, will establish
that of South America, and make you a power both strong
and solid.'
"Having portrayed in glowing terms the many advantages
and possibilities of Colombia, he exclaims:
" ' But, alas ! from what fatality, what cruel destiny is it that
this country, the first in the physical world, not only is not the
first, hut does not even so much as ea-ist in the political world.
It %s because you have not icilled it ; will it, and it is done. Say :
'•Be it Colombia, and Colombia it shall be."'
"The recital in the preamble of the act that 'the towns and
people of New Granada * * * have voluntarily agreed to
subject themselves' to Congress, must be received as expres-
sive of an anticipation rather than of a fact. In his report to
General Santander, vice president and the chief civil magis-
trate of New Granada, December 31, 1820, the commissioner
of the office of the interior and justice, speaking of the 'funda-
mental law' of December 17, said:
'"When this arrangement was communicated to Your Ex-
cellency, you immediately perceived the ad.vautages and bene-
3526 INTERNATIONAL ARBITRATIONS.
fits accruiDg from it. Your Excellency foresaw that a nnion
of forces, an accumulation of resources, must render us for-
midable at home and respectable abroad ; but you would not^
however, risk a decree of obedience till you hud consulted with
the general authorities of the department. * * ♦ This cau-
tion was very just and fitting for the consolidation of the asso-
ciation, which, as it contained a solemn fact, required the free j
express, and formal consent of all the contracting parties,^
"The representatives of the provinces, elected pursuant to
the call of December 17, so published by Zea, met at Gucuta
in May 1821. To them at once General Bolivar resigned the
executive authority that had been conferred on him at Angos-
tura, saying that 'he held the presidency ad interim from the
Venezuelan Congress only, and the Congress then assembled
being that of Colombia, he considered his executive x)ower8 at
an end.'
"On the 12th of July this Congress adopted the 'funda-
mental law of the union of the peoples of Colombia,' parts of
which are the following:
" * We, the representatives of the peoples of New Oranada and
Venezuela, assembled in Geueral Congress, having examined
attentively the fundamental law of the llepublic of Colombia
passed by the Congress of Venezuela in the city of St.
Thomas de Angostura on the 17th day of December 1819, and
considering: 1. That united in one republic the provinces of
Venezuela and New Granada have all the proportions and
means of elevating themselves to the highest degree of power
and prosperity. * * ♦ 3. That profoundly impressed with
these advantages all men of superior talents and patriotism
have urged the governments of the two republics to agree to
their union. * * ♦ In the name and under the auspices of
the Supreme Being, we have just decreed, and we do decree,
the solemn ratification of the fundamental law of the Bepub-
lie of Colombia, just mentioned, in the following terms:
" 'Art. 1. The peoples of New Granada and Venezuela are
united in a single national body under the express compact
that its government shall be henceforth and forever a popular
representative one. . .
" 'Art. 2. This new nation shall be known and denominated
under the title of the Republic of Colombia.
" 'Art. 8. The debts which the two peoples have contracted
separately are recognized in solidum as the national debt of
Colombia; and all the property of the republic is responsible
for its satisfaction.'
" The constitution for the new republic, adopted August 30,
diflFered radically from that proposed at Angostura.
"This simple recital, we think, warrants and impels the con-
clusion that the act of December 17, 1810, while in its x)hrase-
ology declaring Colombia then formed, was intended and
understood to be, and from want of authority in the Venezuela
Congress, could be no more than, a proposition (with tentative
CONTRACT CLAIMS. 3527
provisions) of anion, between Venezuela and New Granada,
which was duly accepted by both provinces July 12, 1821, and
the union consummated. Before this latter date, by whatever
laws governed and in whatever name acting, each province
preserved its legal autonomy and contractual powers. We
are not saying that, for certain purposes or even generally,
Colombia's existence might not be held to relate back. But
we do say that for the purpose or with the result of defeating
contracts with either province made before the consummated
union in 1821, the political extinction of such province will not
be held to relate back also.
"On the question of fact whether Torres acted as the agent
of Venezuela we see no good reason for finding diflFerently
from the courts. He signed himself, in his introductory com-
munication with Idler, July 28, 1820, as the * agent of the
Government of Venezuela.' His powers were quite evidently
in continuation of those of Clemen te. He seemed to recognize
that Idler had certain existing rights because of what had
been done by his predecessor. For instance, without other
allusion to the subject, he said in that letter:
" *A8 the tobacco of Barinas is one of the most productive
resources of the Government of Colombia, and the merchants
of Holland are the best judges of this important branch of
commerce, / recommend to you the Holland merchants as the
best disposed to enter into the views of my government.'
" Why should he recommend to Idler something about a par-
ticular kind of tobacco, unless by some existing arrangement
Idler had to deal with it?
"This, taken in connection with what Clemente said when
the case was before the courts, August 12, 1830, becomes en-
tirely intelligible, to wit:
" *The contracts made and entered into between Idler and
myself were as follows : First. To pay him for each musket
twenty hard dollars, which was the price paid him for them at
Montevideo. But afterward we agreed to reduce it to only
twelve hard dollars, if the government should give him the
monopoly of the Barinas tobacco until full payment of the
contracts.'
"Otherwise it is obscure and apparently out of place. Be-
fore the passage quoted he says :
" *On the other hand you are perfectly acquainted with the
resources as well as the present situation of the Republic of
Colombia.^
"It was probably because of Hhe present situation' of Co-
lombia that he signed as the 'agent of the Government of Ven-
ezuela;' and also because of that 'situation' that Idler would
require the contracts to be made with Venezuela, although
under the name of 'Colombia.' There was no doubt of its
power to contract. The right of Colombia to do so was then
contingent on what might occur at Cucuta.
"While it was natural to point to the resources of Colombia
3528 INTERNATIONAL ARBITRATIONS.
as the probable paymaster (for the union was expected to take
place in January after, less than a year), it was altogether
businesslike to conduct the transactions in the name of one
unquestionably competent to contract. We think that Torres,
therefore, did not subscribe himself as he did by inadvertence.
He dia it advised, and well advised, at last.
''All things considered, we think the objection to the judg-
ment on the score that it was Colombia's debt, if anyone's, is
not here tenable. Nevertheless, under the Colombian act of
assumption of debts aforesaid, and under the general public
law, Colombia became unquestionably liable for Venezuela's
contracts. Tliis did not free the latter, however, beyond the
l)leasure of her creditors. The making out and presenting of
the accounts against Colombia is not important. There was no
other government, then, to present them against.
''It is said the associates were not made parties, and are not
entitled to share in the judgment. This, at least, is a technical
objection. If the debt was owing, it seems of little importance
before the bar of international justice in whose name the suit
was conducted, so the right ones get the proceed s. Had the
associates been made parties, we can not see that the result for
that reason would have varied. Idler always recognized their
interest in the claims and judgment, and it is not apparent how
the (juestion now is material.
"At any rate, objection come.*^ too late. As said by the su-
preme court of justice December 1832, 'both parties have con-
sented to have the case settled as it was,' and questions as to
forms of inocedure are of little moment. Moreover, of the near
$38,000 alleged overpayment at Bogota, Idler's share was only
about $9,000; yet he was sued individually for the whole sum.
He answered, i ecovering over $70,000. Venezuela is not now
in a position to allege that the suit was wrongly cast. Had she
stood by the Ogden liquidation there would be more reason for
this claim, but she did not. She repudiated it. She can not
now hold the associates thereto. It was alleged in argument,
supported by references to tlie record, that the contracts were
all, in fjict, in the name of Idler. But they are not before us,
and we predicate nothing on this ground.
'*The contest in the case finally narrowed down to some five
or six items, four of which formed the basis for nearly the whole
of the judgment, and these cmly shall we notice.
" The government objected to tlie allowance of the loss on
account of the Elena.
" The circumstances connected with this loss are not revealed
by the evidence submitted to us. The council of government
said in their communication of 1834 that it was occasioned by
seizure of the vessel by the United States (lovernment at the
instance of S])anish authorities for violation of neutrality laws.
In.ormal inquiry at the State and Naval Departments has
failed to elicit any facts on the subject. The statements before
CONTRACT CLAIMS. 3529
U8 are to the effect that the loss was occasioned by the Ven-
ezuelan agent, General Clemente, and that the government, rec-
ognizing its obligation to make :t good, agreed with Idler to the
amount in 1820. These statements stand uncontradicted, and
we see no good cause to differ with the courts in respect thereto.
"The council of government fell into a singular error of
fact in supposing this claim was not liquidated and allowed at
Bogota. It will be found by reference to the liquidations
in Ogden's No. 1, the original amount agreed upon being
$7,087.62.
" The item mav be regarded in the light of one agreed to
and paid.
" The charge of $6,336 for the detention of the Endymion^
at Angostura, for 198 days from November 3, 1820, was re-
sisted. There does not appear to have been objection to the
rate of charge, $32 per day, nor question as to the date the
schooner got into port, or as to the time she remained un-
loaded. 'J 'he controversy seemed to tun — though the matter
is involved in much uncertainty — upon the meaning of the
term ' arrival ' in the contract. The referee said :
" 'Arrival of the vessel has never meant anything else than
the moment of the vessel's having entered the port. If the
arrival of the vessel would or could mean the same as ability
to make the delivery of the cargo, as the Secretary of the Treas-
ury understood, the claim might be made also that it means
the day in which the delivery of the cargo was completed.
Nothing of this is correct. The day agreed upon was the day
of arrival, and whatever is said for the purpose of changing
the date is in violation of the contract.'
"The contract is not here, nor is any evidence preserved, if
taken, as to the matter. There is nothing before us upon which
we could base a dissent from the view the courts took.
"The issue about the musket item of $21,285 arose in this
way : The 4,360 French muskets, being the last shipment under
the contracts, were objected to after arrival at La Guayra as
not being according to contract.
" The agents of the contractors, Lemon & Forsyth, agreed
with the vice-president to allow all to go at the reduced price
of $7 each, except 1(^3, which were to be paid for at the usual
figure of $12.
"The Bogota commission allowed $12 each for all.
"The question turned upon the authority of Lemon & For-
syth to agree to a reduction from $12 to $7. Idler denied their
authority, asserting they were, as their power of attorney
known to the government showed, mere receiving and deliver-
ing agents, and claimed the agretoient was that all goods were
to be inspected and accepted in the United States before ship-
ment. .
"The ' diploma ' above quoted from contained this provision :
"*It being understood that we [Venezuela] shall abide lit-
3530 INTERNATIONAL ARBITRATIONS.
erally by whatever they [agents] may have agreed to, without
entering into any inquiry or examination, or making any
remarks or objections on or to the contracts made by them.'
"General Olemente^s certificate, in testimony, contains this
statement :
"* The contracts made and entered into between Idler and
myself were as follows: * * ♦ Second. That the condi-
tions of the diploma under which I and my successor acted were
that all the contracts for supplies made by us in the United
States should be finally ended and admitted and liquidated
there, and that no alteration or reduction of these terms should
ever be made by any authority of the Venezuelan Government,
it being understood that the articles and effects to be shipped
by us were to be examined and received there by us to our
satisfaction, as so indeed they were examined and received.'
" It fairly appears that Lemon and Forsyth were only re-
ceiving and delivering agents.
" There is also evidence to the effect that these muskets, at
the instance of the Venezuelan agent, were examined by a
French officer in the United States and pronounced good arms
and were accepted, though of different sizes and secondhand
in part. It is historically true that at this time the republic
was in great need of firearms. Agents were dispatehed to
other countries for them. The slaves had been given their
freedom and were being armed. So scarce were guns that sol-
diers sometimes went into battle armed only with pikes. It is
not improbable under such circumstances that Torres would
accept almost any character of arms rather than get none.
"The statement that the arms were to be inspected and
accepted in the United States bears the impress of truth in
itself.
"The idea that a business man of l*hiladelphia would send
military supplies by the cargo to the seat of war in that coun-
try, there to be inspected and perchance thrown upon his hands,
borders ui)on the absurd.
"The facts above stated were not contradicted in the evi-
dence, so far as disclosed here. If we were required to find
upon the same question, we should, with the evidence before
us, find with the board of liquidation and the courts that the
agreement for reduction from $12 to $7, each musket, was
unauthorized on the part of Lemon and Forsyth, and that the
liquidation should be made at the former figure.
"There remains to be considered the Barinas tobacco item of
$49,160.00 as finally allowed. Idler claimed his original con-
tract provided for the payment of $20 each for muskets; but
that subsequently the agre^ient was reached to reduce the
price to $12, in consideration of the government giving him the
monopoly of the tobacco grown in the province of Baripas, and
known as an article of superior quality,until full payment should
be made for all the goods bought; and that it failed and refused
CONTRACT CLAIMS. 3531
to carry out this contract — selling others the tobacco while he
remained unpaid, to his damage, $53,781.63. Remembering that
indigo, cotton, cocoa, tobacco, etc., produced in Venezuela, were
sold or disx>osed of by the government, and formed a part of
its 'resources' at that time, we call attention to these sentences
in the diploma:
" * All of the said contracts which the said agents or com-
missioners may make or enter into are beforehand approved of
by us as made and entered into in use of the full unrestricted
powers and faculties given them by us, faculties and powers
which authorize them to deal and stipulate in the name and in
behalf of the republic, and to mortgage her property and her rev-
enues and resources. The said property, revenue, and resources
shall be pledged with absolute preference to the payment of the debts
contra^sted by virtue of this authority J
** Also to this clause in the instructions:'
^^^ Fourth. They are empowered to grant the contractors who
may take to our ports the above-said elements of war all the
advantages that may be deemed just, relative either to prefer-
ence in the payment or to the choice of the particular kind of
articles produced in the country^ or to the amount being credited
to set off customs duties,'
"It will bear repeating, in this connection, that General Ole-
mente, in the certificate referred to, says the contracts made
between Idler and himself provided:
"'First. To pay him for each musket twenty hard dollars^
which was the price paid him for them at Montevideo. But
afterward we agreed to reduce it to only twelve hard dollars,
if the government should give him the monopoly of the Barinas
toba^cco until full payment of the contr acts ^ # # # and that
the amount to be paid Mr. Jacob Idler was to be paid in Vene-
zuela with preference to any other debt, and in hard dollars, if
there was no Barinas tobacco,^
"In the part of the evidence which was before the courts
transmitted us (and it would seem to be but a small part), there
is corroboration of Clemente's evidence and no contradiction
thereof. The contracts themselves as to particular lots not
being here, we are unable to say whether they contain any
modifying provisions. The council of government in its said
communication of 1834 expressed the opinion that the delivery
of such tobacco under the four several contracts * never was
considered as absolutely necessary,' and enter into an argument,
quoting brief portions from the contracts in support of that
opinion.
"But a careful examination of the argument fails to discover
to us the correctness of its conclusion. For instance, with
respect to the first contract considered, it says (italics ours):
"*With respect to the amount of the contract by the brig
Meta [Elena], according to folio 32, articles 3 and 5 are decisive,
^* ^The first of these articles says: The government offers to
3532 INTERNATIONAL ARBITRATIONS.
X>ay the balance (all it owed) of 7,067.62 Spanish dollars at the
expiration of six months, in ready money or in whatever prop-
erty of the republic the creditor (in default of money) should
prefer it. The other article, lifth, says : The government wishes
and permits that the sum which is in virtue of the article 3d,
of this contract, if it is declared due, can be rexjeived as pay-
ment made for export and import duties.'
** Even from these fragmentary portions of the contract (and
it gives no other), it would seem that if the offer in article 3
was accepted. Idler, ^in default of money' — and there was
default — had the right to select the product of payment, which,
of course, would have been the Barinas tobacco as being the
most desirable.
" Article 6 is merely permissory in its terms and effect, and
so far from being, in connection with article 3, ' decisive' of
the question at issue as the council supposes, it is as we view it
irrelevant. The rest of the argument, even upon its assump-
tion of facts, seems to us with all due respect equally incon-
clusive.
"Now, that the government had the Barinas tobacco to dis-
pose of every year from 1826 on, the evidence leaves no room
to doubt; and that it refused to let Idler have the crops is
equally free from question.
"The truth is, that after pledging the crop to Idler, it
pledged it in London to secure government loans there, as
letters from London brokers of that time among the papers
show,
"The Congress of Colombia by an act of 1822, expressly
pledged the 'resources' of the republic to the payment of the
foreign loan authorized by it, in preference to all other debts,
and a subsequent act on this subject, 1823, specially named
tobacco as among the resources so pledged; both in deroga-
tion of the obligations to Idler under the ^diploma' and 'in-
structions.' So that he was effectually cut off from realizing
under his contract, although hopes were still held out to him
for the *next crop' by the intendants.
"There was then a plain breach of contract on the part of
the government, so far as the evidence before us discloses.
"What was the measure of damages? Idler claimed $8 a
musket, the amount of reduction, would, in strictnesss, be his
due. There were over 11,000 muskets in the last three ship-
ments. His claim would thus exceed $88,000. That was not
allowed him. Some half dozen merchants were called on for
their estimates. They computed his losses at about the sum
allowed, perhaps a little over. There is no other testimony on
the subject. The government offered none, so far as appears.
While this sum seems to us large, yet we are unable to say its
allowance was manifestly wrong.
" It had passed the judgment of two referees, amply author-
ized to take testimony, and therefore presumably thoroughly
advised, and had received the sanction of the treasury judge
CONTRACT CLAIMS. 3533
and the superior court; besides having the concurrence of the
governmeut itself, tbrougli its fiscal's written consent to Cade-
nas's award, through the failure of the treasurers to appeal,
and by the direct approval of Bolivar himself.
" We have carefully examined the other contested items —
comparatively small — going to make up the judgment, and fail
to see in any of them a satisfactory reason for refusing its rec-
ognition a« an entirety.
"It will be observed that the decision of the treasury court,
which under the law properly dates from its confirmation,
Oct 1, 1832, is :
** 'That the public treasury is responsible to Mr. Jacob Idler
for said sum of $70,520.11^, which shall be paid him in the
manner and in the form that the supreme government may
determine upon.'
"There is no allowance of interest from June 30, 1825, the
date to which the referees computed it. There was a consid-
erable sum of compound interest in the award. It may have
been for this reason interest after 1825 was not included in
the judgment. At any rate, such is the judgment, and we
are unable to say it is palpably wrong, either for what it con*
tains or may seem to omit.
" We have carefully considered the arguments in favor of
computing interest up to the date of the former award, and
then allowing interest on the amount from such date. There
is much force in the views presented where former awards are
refound. But we feel that course may not be warranted by
the interest provision of the treaty, which reads:
"'And in the event of interest being allowed for any cause
and embraced in such award, the rate thereof and the period
for which it is to be computed shall be fixed, which period
shall not extend beyond the close of the commission.'
" But one period here appears to be contemplated, ending at
some time before the close of the commission. To constitute
two periods, thereby augmenting the interest, would at least
be of doubtful authorization. The failure to embody in the
treaty Mr. Frelinghuysen's understanding is rather an argu-
ment against the view urged than in its favor. Treaties are
prepared with deliberation and care. Neither the omistsion nor
insertion of material matter can be ascribed to inattention.
(The Nereide, 9 Cranch, 419.)
"An entry can be prepared allowing the claimants the
amount of the judgment of the superior court, $70,520, omitting
the odd cents, with 6 per cent interest, that being the rate
named in the contracts, from its date, October 1, 1832, to
September 2, 1890, inclusive, less the deductions provided by
the treaty on account of payments made on the old award, the
same to be distributed as per the agreement on file dated
March 17, 18(>8, subject to mesne transfers of certificates
according to intervening petitions filed in this case.
r
3534 INTERNATIONAL ARBITRATIONS.
Idler's LUjuidaiion at Caracas, November SI, 1SJ4,
No. 1.
The Goyemment of Colombia in current account with Jacob Idler and his
associates.
Debtor.
1820.
Mar. 5. To value of invoices for certain war supplies furnished
under contract entered into with General Lino de
Clemente, at Philadelphia, and shipped on board the
brig Elena, then transferred to the brig Eugene, after-
ward called the Meta, a transiiction which was finally
consummated at Angostura on the 5th of March 1820
on the one side by Juan Bautista Delia Costa, as at-
torney for Mr. Jacob Idler, a merchant of the city of
Philadelphia, in the United States, and on the other
side by Jose Rafael Reveuga, secretary of the treas-
ury, payment to be made according to the contract.. $8,457. 62
Sum 8,457.62
Creditor.
1820.
Mar. 5. Cash paid Juan Bautista Delia Costa in partial payment
of certain merchandise delivered to the government,
said Delia Costa )>eing Mr. Idler's attorney $1, 380. 00
Balance .* 7,077.62
Sum 8,467.62
Mar. 5. Balance due 7, 077. 62
1821.
Nov. 21. Interest on the above from September r>, 1820, to No-
vember 21, 1824—4 years 2 months 16 days — at (> per
cent per annum, according to the contract 1, 788. 29
Nov. 21. Amount due to date 8, 865. 91
Errors or omissions excepted.
jACon Idler.
Caracas, November 21, 1S24.
No. 2.
The Government of Colombia in current account with Mr. Jacob Idler and
his associates.
Dkbtor.
1820.
May 22. To value of invoice of certain war articles shipped on
board the brig Wilmot^ delivered this day at Angos-
tura under contract entered into on the one side by
Jacob Idler, of the Vnited States, and on the other
by Manuel Torres, the agent of the government in
the United States, dat«d in Phihideiphia, April 6,
1820, to the payment of which the liarinas tobacco
was pledged, and the government binding itself to
pay in round coin (hard dollars) if there was no
tobacco, as it appears from the contract No. 5 $63, 071. 60
Sum 63.07L50
CONTRACT CLAIMS. 3535
1821.
Oct. 4. Interest oil $38, 933. 50 from March 11, 1821, to October
4, 1821 — six months twenty-three days — at 6 per 100
perannnm $1,317.07
Oct. 4. Interest on $2,000, as per item on creditor's side, from
March 11, 1821, to October 4, 1821 67.70
1822.
Oc. 1. To interest on balance due October 4, 1821, $33,022.60,
until October 1, 1822, eleven months twenty-seven
days 1,964.83
Sum 66,421.10
Creditor.
1820.
June 11. Cash paid on account of the cargo of the brig Wilmot $22, 136. 00
1821.
May 1. Cash received to-day, balance of receipt given at An-
gostura June 19, 1820 2,000.00
May 1. CasL which ought to have l>een jmid with the tirst
installment 2. 00
July 4. To 553 bales of tobacco, of inferior quality, received
at La Guayra, groHS weight 50,180 pound's, at $10.80
-per quintal 5,419.42
July 4. To 24 bales of Hariuas tobacco, pf inferior quality,
gross weight 2,234 pounds, at $22 per quintal 491. 49
1822.
July 1. Balance 36, 372. 20
Suiu 66,421.10
1822.
Oct. 1. Balance of foregoing account 36, 372. 20
1824.
Nov. 21. Interest on the above from October 1, 1822, to Novem-
ber 21, 1824 — two years one mouth and twenty-
days — at 6 ]>er 100 per annum * 4, 667. 78
Balance 41,039.98
Krrors or omissiouH excepted.
Jacob Idler.
Caracas, November 21, 18J4.
No. 8.
The Government of Colombia in current account with Jacob Idler and
bis associates.
Debtor.
1820.
Nov. 3. To value of cargo sent by the Endiftnion to Angostura
under contract made by .Jacob Idler, of Philudel-
phia, on the one side, and Manuel Torres, agent of
the Government of Colombia, on the other side, at
the city of Philadelphia, on August 18, 1820, to be
paid as follows : Exclusively in Barinas tobacco, but
if there is none, in hard dollars, as per contract $72, (539. 93
1822.
Oct. 1. Interest on half of the above sum, or $36, 319. 96, from
November 3, 1820, to this date, or 23 months 1 day,
at 6 per 100 per annum 4. 182. 85
Oct. 1 . Interest (m the second half of the same sum from May
3, 1821, to October 1, 1822, or 17 months. On this
date — that is, October 1, 1822 — the present account
was prescntea to General Soublette, and pronounced
by him correct 3,087.20
3536 INTERNATIONAL ABBITKATI0N8.
1821.
May 20. Demurrages of the schooner Endymion at Angostura
fh>m November 3, 1820, to May 20, 1821— that is 198
days, at the taUi of $32 per day — as per account
presen ted $6, 336. 60
1822.
Oct. 1. Interest on the a1)Ove from May 20, 1821, to October 1,
1822, or 16 months and 13 days 520.61
86, 766. 59
Oct. 1. Amount due on this date 86, 766. 59
1823.
Aug. 16. Interest on the above sum of $86,766.59 from October
1, 1822, to August 16, 1823, or 10 iiionths and 15 days
at 6 per 100 per annum 4, 555. 23
Sum 91,321.82
«
Creditor.
1822.
Oct. 1. Balance due on this date, as per account presented to
His Excellency (lencral Soublette and found by him
correct 86,766.59
1823.
Aug. 16. To 60 bales Barinas tobacco, received from General
Soublette, amounting in clipjted ruin to 1,674.93,
which, being reduced to hard dollars at 12^ per 100
discount, make 1, 465. 56
Aug. 16. To amount received from the iutcndant in
drafts on the La Guayra custom-house. . $18, 050, 00
To discount of 15 per cent In place of 35
per cent, allowed on $7,000 to eriualizc
that amount with macuquina 1, 050. 00
17, 000. 00
To 18^ per cent on $7,000, to
make the aforesaid macuquina
equal to hard dollars $1, 283. 33
To 33i per cent on $10,000 for
loss upon the drafts and macu-
quina 3,333.33
4, 616. 66
12,383.33
1823.
Aug. 16. Balance due on this djite 77, 472. 93
Total 91,321.82
Aug. 16. To balance due this date 77, 472. 93
1824.
Nov. 21. Interest on the above from August 16, 1823. to Novem-
ber 21, 1824—15 months and 5 days 5,875. 02
Balance due to date 83,347.95
Jacob Idler.
CAltACAS, November 21j 18J4.
CONTRACT CLAIMS. 3537
No. 4.
The Govemment of Colombia in carrent account with Jacob Idler and his
aBSociates.
Debtor.
1821.
Oct. 4. To 4,360 French maskets, arrived on this date at La
Gnayra under contract of September 21, 1820, to be
paid half of the amount 30 days after this date and
the other half 6 months after this date, with interest
at 6 per 100 per annum, at $12 per musket $52, 320. 00
Crkditok.
1821.
Oct. 20. To i2Sfanega8, 6 pounds, of cocoa, received
on account, at $16 per /anef/a, in clipped
coin $6,848.96
Do., do., in drafts, to be U8ed to pay a
fourth part of duties on imports in the
La Guayra custom-house 24, 340. 54
31, 189. 50
Less 25 per 100 of loss or depreciation in
the drafts and difference between clipped
coin and hard dollars 6, 085. 18
25,104.37
1821.
Nov. 4. Balancedue 27,215.63
52, 320. 00
Nov. 4. Balance due on thiH date 27, 215. 63
1824.
Nov. 21. To interoHt from April 4, 1822, to November 21, 1824,
on the above balance of $27,215.63 — tw<» years, seven
months, and 17 days— at 6 per 100 per annum 4, 2iM. 42
Nov. 21. Total balance due to date 31,510.05
Errors and omissions excepted.
Jacob Ii>lkr.
Caracas, Xovt^iber 21^ IS 24.
I, Juan de Kscalona, of the Order of the Liberators, a brigadier-general,
and the intendant of this department, do hereby certify that I have exam-
ined the foregoing account of the (loveriimentof Colombia with Mr. Jacob
Idler for 4,360 French muskets, and I have found that its charges agree
with the prices and terms of the original contract I have had before my
eyes, and that the items on the credit side also agree with the certificates
issued by the respective otHcers, which I have also had before me. For
these reasons I judge the said account to be correct, just, and well made;
and, at the request of Mr. Jacob Idler, I have issued the present eertiti<!ate,
at Caracas, this 7th day of February 1825.
J. I>E ESCAI.ONA.
[Note. — A like certificate of the Intendant Esoalona is appended to each
of the other three accounts, with the possible exception of the first.]
/
3538
INTERNATIONAL ARBITRATIONS.
Ogden'a liquidation at Jfogota, December «?/, lSg4.
(No. 1.)
HoGOTA, December SI, 1824.
Thi8 commiAsion having seen and examined tlio docaments presented as
to the amount which Mr. Henry Ogden, agent of MeHurs. Bosert & Knee-
land, deniandH as what 1>elong8 to them for thrce-fouriha of the acconnt
liquidated in Expediente No. 6, for Mr. William Duane, agent of Mr. Jacob
Icuer, upon contracts which he made with Mr. Manuel Torres, agent of
the republic, for himself and in the name of his associates^ the gentlemen
before named, it declares that the following items result in favor of said
gentlemen against the republic :
Interottt
from
January 1,
1822, to
T)eceinber
31, 1824.
Intereat
to end
of De-
cember,
1821.
For 92,411.73 peaoa Charged by t)io party iut(*rc8tc(l at* bal-
ance of 92,702.93 ne^OH resulting from tbo liquidation
heretofore made ror Mr. William Duane as agimt for
Mr. Idler, ded acting 291.20 peauH for 18 fanegas and 26
poands of cocoa, at 16 pesos, which Mr. W. i\ Lemon
admits that he had received over and above the 428
fanegas 6 pounds charged to him by tlie rnstom-houHo
at La Guayra, the whole of vrhich amount proceeds from
articles or war delivered at Angostura; and it having
1>een provided by the supreme government that thiH
commiHsion shall make the li<| nidation and distribution
of the proportion which iM^ongs to the gentlemen asso-
ciated witn Idler, whom Mr. X)gden represents, being
three-fourths ]>art, there results in belialf of the saiu
gentlemen an item of 69,3U8 i)esos 7§ reals, and on ac-
count of Mr. Idler 23,102.77 [pesos]
For 4,448 pesos 73 reals, three- fourths part of the interest
at 6 per cent, as exprAsl^- stipulated, running from
their respe<aivo dates to December 31, 1H21, bi^longing to >
the said associati'S, and to Idler 1.406 pesos 2| reals 4, 488. 7|
For 12,610 pesos 1 real for the tlire4>-fourths part of inter-
est due to the said gentlemen from January 1, 1822, to
December 31, 1824, bocaune of 6 ])er cent annually arising
to tlie party intereste<l from 1822 by the li(|uidation for
Duano, in addition to the alrave
For the item of 7,077.02 penos, which represent the 8,847
pesos sencillos airknowlcdged bv the coniinissioners at
Angostura in favor of Mr. Jacoo Idler for materials of
war which he sold to the government, as appears by
the vale signed by Mr. Henry Ogdeu, agent of Messrs.
IJogert & Knceland, to whoin belong, ias their three-
fourths part, 5,308 pesos 16^ reals, and to Idler 1,709
pesos 3| reals
12, 010. 1
For the thn»<'-fourths of intvn'Mt at 6 i»er cent, as agree<l
on, belonging to said gentlemen, ao<Tue<l from Septem-
ber 5, 1H20, to the end of Dec^jmber, 1821, 420 pesos 42
reals
Princi.
09, 808. 7|
420.41
For that incumMl from January 1, 182*2, to the last of
De<iember, 1824, 955 ]»eMos 3 retus
For 2,238 ptoses 4 rivals, interest at 6 per cent <iii t he amount,
74,617 pesos 13 reals, to which for(>going items amount,
from January 1, 1825, to June 30 of same year, as resolved
by the government '.
By the foregoing adjudication and li<|uidation there result
in favor of Messrs. iiogert «&. Kneeland the amount of
items afon*8aid
For intenmt to the end of I)ec*ml>or 1821, 4,909 ]>esoM 4
reals
Intttrt'st accrue<l fn>m January 1, 1822, to .lune 30, 1S25,
15,804 pesos 5;j reals
'Which it4Mus added amount in all to 05,330 ]>esoH 5
l»55. 3
1, 23^. 4
5,308.11
74,617.11
4,909.4
15.804
reals 95, 330. og
(Signed)
CONTRACT CI^AIMS.
3539
(No. 2.)
Bogota, Decetnher Sly 1824.
This oommissioii having seen and exaniinecl the docnments presented by
Mr. Henry Oeden, showing the amount which, as agent of Messrs. Bogert
& Kueeland^ne demands from the republic for their part of the total value
of the guns sent from North America for the use or Colombia, under the
contract between Manuel Toixes, agent of that government, and Mr. Jacob
Idler, for himself and in the name of his associates, it declares that the
following items result in favor of said gentlemen against the republic :
For 52,320 pesos, value of 4,360 ^i^nns delivered at La Gnavra October
14, 1821, at the price of 12 pesos, in virtue of the contract above
referred to, made Sentembor 21, 1820, upon which amount have
been credited the followine sums: 6,848.96 pesos fuertes for 428
fanegas 6 pounds cocoa, at 16 pesos fuert^^s, and 24,340.54 pesos in
voUm for one-fourth of the duties, wliich, being mocii^uttia money .
when reduced to fuertes are 19,472.44 pesos, and make in all
26,321.40 pesos; which, deducted from the charge of 52,320 pesos,
leaves of the prlncipid 25,998 pesos 4} reals, to l>e divided between
Messrs. Idler and his associates in the proportion of five twenty-
fourths for Idler and nineteen twenty-fourths for his associates.
Bogert Sc Kneeland, in accordance with which there is due to
theae the amount of 20,582 pesos 23 reals, and to Idler that of
5,416 pesos 2 reals, all being proved by the documents in the expe-
diente
For 4,235 pesos 1| reals of interest accrued from October 14, 1822,
six months after the delivery of the guns, as expressly stipulated
for, at6per cent as agreed upon, until l)ec4»mber 31, 1824, which
amount iM^ing diviHibie between McHsrs. Idler and his associates,
there belongs to these for their nineteen twenty-fourth parts,
3,352 pesos fg reals, and to Idler 882 i>esos 2^ reals .^
l\j the foregoing adjudication and liqnidation there results in favor
of Messrs. Bogert Sc Kneeland on account of the above item of
20,582 pesos 2| reals
Interest to the end of 1824, 3,352 pesos 7J reals ,
Which items being added amount to 23,935 pcHos Ig reals.
Interest
to the
31st of
Decem-
ber, 1824.
3,352.74
Princi-
pal.
20,582.21
20. 582. 2)
3, 352. 74
23, 935. 1|
(Signed)
Michelena^s settlement.
Bogota, June 30, 1825,
This commission having seen and examined the documents presented and
liled in the archives of the li<iuidated foreign debt, Nos. 39 and 42, it thence
determines the part belonging to Mr. Jacob Idler, now demanded from the
republic by Mr. Santos Michelena, as agent for the said Idler, and declares
that us adjudicated and liquidated the following items result:
1. Vftlue of 4,360 ^nns sold to the covernnient, amounting
to 53,220 pesos, from which sum being deducted 26,321.40
)»esos, rtH;eived by the jmrtieH interested, in t^vale fur
discount of duties, and 428 fane^us 6 ]>(>iindH of cocoa,
there remained 25,i>98 pesos 4> reals that was liquidated,
of which belonged to AleMsn*. lJo;;ert & Kneeland, as ap-
pears by Expediente No. 39, nineteen twenty-fourth
farts, and so is left fur this liquidation to Mr. Jacob
dler, for his five twent^'^fonrth jmrts, 5,416 pesos 2
reals, as appears from the said expediente
Interest
from
January 1,
1822, to
December
31, 1824.
Interest
to the
end of
Decem-
ber, 1821.
Princi-
pal.
5,416.2
5627— VOL. 4-
20
/
3540
INTERNATIONAL ARIHTRATIONS.
For 1,044 pesoB 6 realH of interest incnrro<l from April 4,
1822, six months after the deliver^' of the ^unH, under
the ox]>re»8 8tipulation of 6 per cent, to June 30, 1825. . .
2. For balanC'e reHulting from the liquidation in Kxpe-
diente No. 42, amounting; to 92,702.93 jiesos, from which
amount having been deducted 291 .20 (value of 18 fanegas
26 jMjunds of cocoa recrivcd by the parties in interest
over and above the 428 fanejjas 6 pounds aliovo men-
tioned, in J-.a CJnajTn) remain 92,411.73 pesos, of which
amount a liuuidation has In^cn nutde as to the threi^
fourth parts belonging to McHsrs. Hogrrt &. Kneeland,
BO that there remain, for the one-fourtli part of Mr.
Jacob Idler, 23,102 ]»e808 G realn. nil of which appears
from Krpedieii t<r No. 42, abo ve ci t ed
Interest on the la.st amount at 6 }>er cent, as stipulated,
from the respective dates that appear in the Kxpedicnte
No. 6 of William Duano, to December 31, 1821, 1,496
i>esos 2j5 reals
That accrued from January 1, 1822, up to Juno 30, 1825,
4.851 pcMOS 4 reul.s
3. For 8,847 ]>e.>^o8 scucillos, value of variouH war material
sold to the government, as acknowle<lgcd by the com-
mission at Angostura, in favor of Mr. I<ller, as is shown
by the vile that appears in Expeiliente No. 4'-', whirh
being reduce«l to p4*.Hos fuer*es make the sum of 7,077.62
miHos, of which thrce-fouiths belonged to Messrs.
hogert iV Kneeland, leaving for this liquidation in favor
of Mr. Idler 1,769 pesos 3^ reals
Interest
from
January 1,
1X22, to
Decern 1 cr
31, 1824.
1, 044. 6
Intcr.Ht
to the
end of
Decem-
ber, 1»21.
Pi-lncl-
pal.
23,102.6
1,490.2*
4.851.4
1.759.31
Interest at 6 per cent, as expressly agreed upon, from
Septembers, 1820, to December 31, 1821, 140 pesos ij reals.
That accrued from Januarj' 1. 1822, to June 30, 1825, 371
pesos 4g reals
By the foregoing a<l.judication and liquidation, results in
favor of Mr. Jacob Idler against the republic for the
said ])articulars, 30,288 pesos 33 reals
Interest to end of December, 1821, amounts to 1,030 )>esos
32 reals
140.15
371. 4^
Samca<crued from January 1,1822, to June 30, 182.3, 6.207
p<?ao3 63 reals '. 6, 267. ۥ
,; 30,288.31
1,636.32
Which items, being added together, amount in all i
to38,102i»e8os5„ reals 38,192.5}
(Sigued)
Mr. Andrade, Venezuelan commissioDer, de-
en gupinion. jjy^pg^^ ^j^^ following dissenting opinion:
"In two essential points I regret to dissent from the opinion of my
learned colleagues: (1) In regard to their conception of the character of
this court and their mode of understanding ;nid applying in relation
thereto the principle of the validity and authority of foreign Jndgiueuts;
and (2) with respect to their views of the rcsponsihility of Venezuela in
consequence of the liijuidation, which was the jainiary cause of this claim.
"1. As to the lii-flt i)oint, it will sutliec to read the passages in Vattel
and Wheaton cited in support (»f their opinion and the reflect ions pro-
ceding these to perceive that my colleagues treat this conimission as a
domestic court of the I'nited States or of Kn;;;land, and as if the two
A'enezuelan Judgments appearing as evidence in this case were foreign
CONTRACT CLAIMS. 3541
jadgments. According to my apprehension, the commission is what it is
{id quod est), an international court of arbitration' of the United States of
America and the lJnite<l States of Venezuela ! There would be little pro-
priety in saying that before such a court Venezuelan judgments are foreign
judgments.
''There is a substantial difiference between a domestic court iuHtituted
by a sovereign for the purpose of distributing justice within his territorial
jurisdiction and a court of arbitration especially instituted by two sover-
eigns for the settlement of certain matters in dispute between them. The
one springs from domestic power, and has exclusive right of jurisdiction
within its own territory; the other springs out of the autonomy and free
will of both contracting parties, and its jurisdiction may be said to extend
to the territory of both. The former in adjudging performs an act of
national jurisdiction ; the latter an act of international jurisdiction. The
municipal court of a state can not but consider as foreign the judgments
of the municipal courts of another »state, and in virtue of the principle of
national independence has the right to subject the recognition of their
validity and authority to rules more or lesn restrictive. To a court of
arbitration created by two states judgments of one of them can not be
foreign, and the confidence voluntarily put by both in its impartiality and
prudence should bind it to apply openly and frankly to the judgments of
both the general principle of the law of nations, res judicata pro rteritate
accipitur.
"Moreover, here two judgments are treated of, both rendere<l by Vene-
zuelan courts; one in support of the claim, the other denying it. My col-
leagues have applied to the first the principle of the law of nations
adverted to, and to the second the doctrine of the exclusive national juris-
diction, thus establishing a distinction which has not seemed to me per-
fectly conformable to justice, as I understand it. Justice would put both
judgments ui)on the same footing, in regard to the former, the Government
of Venezuela ha<l contended that the court which rendered it had not
jurisdieticm over the cause. If, then, preference, perhaps undue, were to
be given to munivipal doctrines and the course of rcrision were to be atlopted,
the power which that court i>rofes8ed to have of taking jurisdiction ought
also to be looked into, because if it had not that power its judgment was
a mere nullity not entitled to any respect. It is of no use to say that the
question of jurisdiction over tliat cause was in the last resort decided
against the government by the supreme court, for under the course adopted
that de<risiou itaelf was also reexaniinable.
" But to prefer such ccmrse without proper means to pursue it (inasmuch
as serions doubts may be entertained whether the commission has the
means) was probably to run risk of error and injustice. ' Some of the wit-
nesses may be since dead ; some of the vouchers nuiy be lost or destroyed.
The merits of the case as formerly before th(> court upon the whole evidence
may have been decidedly in favor of a judgment; upon a partial possession
of the original evidence they may now appear otherwis*'. "" * * Or is
the court to review the former derision, liki^ a court of appeal, upon the
old evidence? In a case of covenant, or of debt, or of a l>rea<*h of con-
tract, are all the circumstanccM to be reexamined anew f If they are, by
what laws and rules of evidence and principles of justice is the validity of
r
3542 INTERNATIONAL ARBITRATIONS.
the oripnal judiniieut to be trieil f Is the court to open the jadgment and
to proceed ejc equo et bono f Or is it to admiuister strict law and st-and to
the doctrines of the local administration of justice? Is it to act upon
the rules of evidence acknowledged in its own juri8)>rudence or upon
those of the foreign jurisprudenee f These and many more questions might
be put to show the intrinsic difficulties of the subject.' (Story, On the
conflict of law8f ^ 607.)
'Mtesides, for me, that which the commission was to decide was not the
merits of the Venezuelan judgments, but the real justice of the claim
itself, viz, that which was submitted to Sprotto in January 1830, arising
out of the differences between the liquidation made by the treasurers, and
that by Idler. To examine de novo the original accounts, upon which
those two liquidations were made, was, in the actual state of things, the
only right way to establish whether the Ogdon liquidation contained
'undue rebatements and substantial errors ' by consequence of which Idler
had been overpaid $37,000 at liogota; or whether if, on the contrary, some
items of charge against the government had been omitted therein which
Idler had the right to add afterward to his account, and by reason of
which he became creditor of the public treasury for the amount of
$70,520.11^, which the treasury court ordered to be paid to him in Octo-
ber 1832; in short, the only correct method to make evident the rights
of the parties and the genuine justice uf the claim.
*' 2. As to the other point of disagreement, I can not entertain any doubt
that the political existence of Colombia definitively dated from the 17th
of December 1819. The law of that date, by virtue of which the said
republic was declared to be constituted, positively says:
** 'Art. 1. The republics of Venezuela and New Grenada remain from
this day united as an individual one und^'r the glorious name of Bepuhlic of
Colomhia.'
***Art. 13. The Itepuhl'u' of Colombia shall be solemnly jffoclaimed in the
towns and in the armies, with public festivals and rejoicings, which shall
be done at this capital on the 2oth of the present December^ in commemora-
tion of the birth of the Saviour of the world, under whose patronage this
longed-for reunion, by which the state is to be regenerated, has been attained.
'* *Akt. 14-2. The present fund<imental law of the IlepHblic of Colombia shall
be solemnly promulgated in the towns and in the armies, entered in all the
public records, and deposited in all thenrchives of the chapters, municipalities,
and corporations, both .ecclesiastical and secular.
'* 'The arguments of Bolivar,' as stated by General O'Leary, in his
Memoirs, 'prevailed, and he had the good fortune to see his noble efforts
meet with victory. The fundamental law constituting th^ Republic of Colom-
bia was nanctioned at Angostura on the 17th of December 1S19, a memorable
date in the annals of the conntr}^ for two reasons: because it was the
day of the birth of the great republic', and of its founder's death.'
" * Meanwhile the Congress of Angostura elected the chief magistrates
the same day in which it decreed the Jiepublic of Colombia. Holivar was
elected president.
** 'In the short period of two weeks of unceasing labor and diligence,
liolivar laid down the foundations of a great republic, and dictated measures
appropriated to insure its progress at home, and t<» establish its credit
abroad. To this end he a]>pointed Don Francisco Antonio Zea, in whose
CONTRACT CLAIMS. 3543
ability and clear intelligence he had tho great'Ost confidence, as special
commissioner. Zea carried with him instructions to eramine all pending
claims, to consolidate the debt, and to negotiate a loan. He ought also to solicit
the recognition of the Bepvblic of Colombiay and to conclude treaties with those
nations wishing to do so.'
''General P^ancisco E. Gomez addresses himself to His Excellency the
President of Colombia^ in writing to Bolirar, from the city of Asnnci6n,
Febrnary 14, 1820.
'* (General Santander, Vice-President of Cundinamarca, writes from
Bogota, February 15, 1820, to His Excellency the President of Colombiaj
Greneral Simon Bolivar, acknowledging the receipt of the fundamental law
of the Republic of Colombia.
'"On no occasion like the present one,' adds General Santander, 'does
Your Excellency so justly deserve the glorious title of Father of the
Republic. Your Excellency has liberatxul her from her tyrants, has reunited
her, and will also present her, before the eyes of the whole world, as free,
independent, and organized.'
"Observe also how Bolivar himself speaks in his proclamation of March
3, 1820, the day of his entrance in Bogota, returning from Angostura:
*** Colombians! The Republic of Colombia proclaimed by the General Con-
gress (of Angostura) and sanctioned by the free people of Venezuela and
Cundinamarca is the seal of your independence, prosperity, and national
glory. The foreign powers, on presenting yourselves before them, consti-
tuted upon solid bases. * • * Spain herself, on seeing you standing up
over the immense ruins, which she has heaped up within the boundaries
of Colombia. * " *
** * Colombians ! The twilights of tho day of peace already illuminate the
sphere of Colombia.
*' * Cundinamarcans ! I wanted to be convinced that yon still wished to
be Colombians. You answered to me, " Yes," and I call you Colombians.
'"Venezuelans! You have always shown the ardent interest to belong
to the great Republic of Colombia, and your wishes are fulfilled. The aim
of my life has been one: Ihe creation of the free and independent Republic of
Colombia between two brotherly peoples. 7 have succeeded! Long live the
God of Colombia!'
*' So Bolivar's reply to Morillo, who proposes an armistice, on April 21,
1820:
*' ' The Republic of Colombia congratulates itself to see the rising up of
the day in which Liberty extends her blessed hand over the unhappy
Spain, and to see her ancient mother country follow her on the pathway
of reason.
" ' The people of Colombia being determined *• • * j take the liberty
to hand Your Excellency the fundamental law herewith inclosed (that of
Angostura) which establishes the only basis on which the Government of
Colombia can treat with the Spanish Government.
'"A single cry resounds throughout Colombia.* (Sec the treaty of ar-
mistice. )
" Letter of Bolivar to Brigiwlier Torres, Spanish governor of Cartha-
gena, Turbaco, August 26, 1820 :
" 'It is the summit of madness, and more yet, of ridiculousness, to pro-
pose to the Republic of Colombia her submission to Spain.'
r
3544 INTERNATIONAL ARBITRATIONS.
"Another time, liolivjir, writing to Morillo, in regard to the armistice,
ft-oni iSan Fernando, ( )ctol)er 2(), 1820, says :
" *I will i;iv« Your Kx<;ellency an idea of the bases that I propose for
the armistice, in order that, shonhl thoy be acceptable, Your Excellency
may send his delcgaten to negotiate and conclade it at my headquarters.
*^ 'An armistice will bo maintained dnring fonr or six months, in all th^
departments of Colombia.^
''Finally, ihero is not one function of the domestic or external life of
Venezuela and New Granada, subsequent to December 17, 1819, which
does not a]ipear to have Ix^en accomplished in the name of the Bepublio of
Colombia and by authority of the constitution of that date. Thereafter,
there is not a single act of Bolivar or of the vice-presidents of Venezuela
and New Granada, or the permanent commission of the Congress of An-
gostura, or the municipalitioH and courts of justice, which does not bear
testimony to the fact that a new state, de facto ef de jure, started into
existence on the 17th of December 1819, and that a new sovereignty was
established in the world for all the efTects of political and civil life under
the* name of Republic of Colombia. This is a fact well recognized thence-
forward by history and international law, which is not permitted to-day
to be put in doubt.
'' * Venezuela,' says Calvo, * took part in the war of independence in
1811, and wan united in 1819 to Ecuador and New Granada to form the
Republic of Colombia.^
** When Llh'r sold to Torres, in 1820, the three i'lvoices of flints, fire-
locks, and muskets, ho knew very well that he sold them to Colombia and
not to N'enezuela, which was alrea<ly incorporated in the former; he knew
it because his accounts for those invoices were made out against Colom-
bia, and he always dealt with Colombia in regard to the liquidation and
settlement of the same. This is a proof of fact beyond all question.
Therefore, when, in 1830, Venezuela was again severed from (*olombia, he
had no other right against her, if anything were still due to him, on account
of the above mentioned invoices, than that which was left to him by the
agreement concerning the ])artition of the general debt of Colombia be-
tween the three sections which had constitutejl the said republic. When
a state is dividend the law of nations only requires that its obligations be
proi)ortionately distributed among the new states into which the former
has been <livided.
"For the same r<'ason the responsibility of Venezuela in this case could
never be extended beyond the 28A unit« of the de])t of Colombia assigned
to her by virtue of the aforesaid agreement; and I believe that this com-
mission can not injustice impose upon her a larger one. Nothing done or
saitl to the contrary by her own government or courts, or by the Board of
Li<luixlation of Bogota, can have had for eifecrt to make her obligation to
Idler either better or worse. In or<ler to change the right of the one, or
the obligation of the other, it was necessary, previously, to change the
facts which had i>ro<luced them; and the facts that Idler <'ontracted with
Colombia, and that N'enezuela only a<'cepted the obligation of paying 28^
per cent of the debt of the former, have not been altered.
** Such is my opinion."
CONTRACT CLAIMS. 3545
In the latter part of April 1812 there arrived
Sale of Proyiiions: at La (xuayra, Venezuela, from Baltimore, in
AUowanc6 of Inter- ^i,^ United States, two cargoes of flour belong-
eat: asee o n- j^ ^ merchants of Baltimore, citizens of the
nell'B Ezeontor, and
of HollinB ft Mo- United States, and consigned to Gerardo
Blair. Patrullo. PatruUo, as agent of the owners,
sold the flour to Pedro Eduardo, agent of
the Venezuelan Government, agreeing to receive in payment
a certain quantity of coflee. Only a pjirt of the coffee was
delivered, and as to the undelivered part Patrullo, on July 25,
1812, entered a protest, in which he also claimed demurrage
apparently paid by him to tlie vessels while they were waiting
for the undelivered coff'ee. After his return to the United
States he had some correspondence with his principals in Bal-
timore, and the claim then disappeared till 1835, when one of
the interested parties in Baltimore submitted it to Mr. Forsyth,
then Secretary of State. By the correspondence of Patrullo
with his principals in 1814 it appeared that the Spanish loyal-
ist government, which regained its ascendancy in Venezuela a
few days after he made his protest, and into the hands of
which the flour had fallen, paid him off with a deposit of Ven-
ezuelan paper money, of little or no value. Patrullo, in the
correspondence in question, took the ground that this could
not be considered as payment, for the reason that coffee was
to be given for the flour, and that the paper money was, as he
said, to be received back by Venezuela.
The claim was presented to Venezuela. That government
replied that Patrullo had received full payment for the flour in
a custom-house credit allowed him by the Spanish authorities,
and that this credit, in a long course of dealings, from 1812 to
1820, had been extinguished by debits which he passed through
the custom-house when it was under the control of the Spanish
loyalists. Did this transaction discharge Venezuela!
It was argued on the part of Venezuela ( I ) that the law of
Spain, which was alleged to have been in force at the time of
Patrullo's dealings with the Spanish authorities, permitted one
person to pay the debt of another, even against the hitter's
will; and (2) that the law in force in Venezuela at the time
when the contract was nuwle treated a foreign factor as to
third parties as a princii)al.
As to what was the law in force in Venezuela at the differ-
ent periods in question, there were opinions of counsel but no
i
354fi INTERNATIONAL ABHITRATI0N8.
proof in the form asually observed in proving foreign laws.
The couiuiisHion therefore pronounced no definitive opinion on
the <[iiestion, but adopted, as <<the most sensible and enlight-
ened rule/' the doctrine that the relations of the parties to a
contract are to be deduced ^^ not irom a fixed presumption of
law, but from their intention, as an inference to be drawn firoin
the facts in each particular case." (Citing Oreeii v. Kapl'e^ 3C
Eng. Law and E(i. 396, 399 ; OelrickH v. VoriJ^ 23 Howard,
49-(>5.) Apjdying this rule, it appeared upon the face of the
proofs that it was understood that Patrullo was acting not for
himself but merely as the agent of another, and that the theory
of payment really rested upon an alleged fraud by PatruUoy
which the Spanish authorities, strangers to the original con-
tract, enabled him to ])erpetrate. It appeared that it was not
till January 15, 1813, that Patrullo api)lied to the Spanish
authorities for a custom-house credit for the balance due on
the flour, and that a credit was allowed him in the following
April to the amount of 8,904.3 reals. On what basis this allow-
ance was made it was impossible from the proofs to say.
Counsel for the chiimants contended that it was- for a lot of
tlour in which l^itrullo was individually interested. The com-
mission allowed, as principal on one cargo, $(G,3G4.32, and on
the other, }!<7,()41.8(), each being the amount of Venezuelan
paper deposited by the Spanish authorities on the respective
cargoes.
Interest was allowed on these sums at the rate of 5 per cent
from May 14, 18<»8. The coiumission (Mr. Findlay delivering
the opinion) said that the case was one that called for '^the
rigid application of the doctrine that interest is the indemnifi-
cation which the law allows for detaining money unjustly."
The claim was not presented to the Unit(»d States till 1835.
In 1838 the diplomatic corresi)ondence ceased with the appar-
ent acceptance by the Tuited States minister at Caracas,
though under protest, of the defense of i)ayment by the Span-
iards. The claim then ceasinl to be i)r()secutcd till 18()8, when
it was revived before the commission undei* the convention of
18(>0. In this relation Mr. Findlay said :
" There is nothing that we can perceive in the origin and
history of such a claim which calls for an allowance of interest
such as would be i)roper and just in any ordinary case where
money lawfully due has been unjustly detained by the debtor
without any excuse, legal or equitable, for its non])ayment.
It has been contended that the conduct of the Venezuelan
CONTRACT CLAIM8. 3547
authorities in setting up the contradictory defenses of pay-
ment to Patrullo by the Spaniards and of payment by the
deposit made by him in paper money shows insincerity and
double dealing, and a deliberate design to escape from per-
formance of a plain obligation.
"When it is remembered, however, that a period of twenty-
five years had elapsed before the claim was originally pre-
sented, and that in the mean time the community represented
by the political entity which goes by the name of Venezuela,
had first been patriot and then Spanish, then patriot and
Spanish again, and then patriot; and had besides been merged
in another sovereignty for a period of ten years included in
this interval, the whole period being marked by a continued
struggle for existence, frequent changes in administration, and
all the uncertainty and confusion in tlie orderly administration
of government and in the keeping of regular accounts, which
such a dislocated and revolutionary career involves, it is no
cause for injurious criticism that her ofiicials, when called upon
to explain a transaction as antiquated and obscure as this,
should have taken the course complained of, but it is rather
matter of surprise that they succeeded in rescuing as much as
they did from the confused rubbish at hand upon which to
construct any defense at all. At all events, we do not think
that it would be either a wise or a just exercise of the discre-
tion vested in us to allow interest prior to the date of the
Caracas Commission."
John DovnelVa executor v. Venczuelaj No. 3, and ffoUins tf* McBlair v, Ven-
ezuelat No. 4, United States and Venezuelan Claims Commission, conven-
tion of December 5, 1885.
Mr. Andrade, the Venezuelan commissioner, contended (1) that " the pay-
ment made by Spain for Venezuela wjw law and released the latter of her
obligation, at least, granting that Patrullo was the legal person entitled
to receive the payment,^' and (2) that Patrullo, by the law in force in Ven-
ezuela, was such person.
Mr. Little, in a separate opinion, said:
"Tlie salient facts appear to be:
" (1) The claimants bartered their Hour to Venezuela for coffee — a bar-
rel of the former for two quintals of the latter.
"(2) Venezuela received all the Hour, 1,020 barrels.
" (3) They in return received only a part of the coffee.
" (4) There was a balance duo tlieni which they never received from any
source, and which she never dolivored or accounted for to anybody.
"The defense is, that Patrullo, their agent in the transaction, after the
Spaniards obtained control, securc'd from them a credit on his own account
on the custom-house books of La Guayra for the value of this balance due,
and that that canceled tho obligation.
" I think not. There is no evidence of any authority from the claimants
to him to deal with that balan<*o on his own account, or otherwise than to
receive and forward the produce. I am not prepared to say that an agent
thus beyoud the reach of his principals might not, under some conceiva-
i
3548 INTERNATIONAL ARBITRATIONS.
ble ciirnmstances, deal with tlicir credits outside of the scope of his gen-
eral authority, without their express coDSCDt. It may bo that if Venezuela,
as a political entity, had boconie irretrievably extinguished, and that fact
had been generally known and acknowledged whon Patrullo got the credit,
the law would havo presumed an assent on the part of his principals to the
transaction, made in good faith, as the only hope of any return left to
them.
'' But such was not the situation at that time iu Venezuela. The spirit
of libi'rty was still abroad in tho land. Its citizens were preparing for a
renewal of the conflict, and had, in fact, an army in the field. The chances
of payment to the principals were not gone, nor even, perhaps, desperate,
in April 1813, when Patrullo got the credit. Under such circumstances
their authority or atUrmance would be necessary to bind them.
" UnqiieHticmably th(^ lex loci contraetmt entered into and formed a part
of the contract of barter with Venezuela. But no law of that country
h.'is be<'n cited, as I conceive^, that would authorize a broker thus to deal
with his prinei pal's property.
"And I do not at all question the law quoted by Mr. Commissioner An-
drade, to wit:
'' 'And not only is a person acquitted of what he owes by paying himself,
but also 1>y another paying in liiH name. And although ho who owes such
debt did not know that the other was paying for him, still ho would be
acquitted, and even if ho knew it aud opposed it.^
"The ditliculty is in the application to the facts. Spain did not pay the
balance for or in thr name of Venezuela. There was no purpose to free
her enemy from tho obligation, either on her part or that of Patrullo.
The latter, as the evidence shows, always regarded that obligation as con-
tinuing, an<l even, as it would si-eni, attempted to discharge it iu worth-
less Venezuelan i)aper money, as pointiul out by Mr. Commissioner Findlay.
'•The claims were not presented to the (Government of the United States
in their true characti'r, not from any purpose to deceive on the part of the
claimants, but because of lack of full informaticm from their agent. The
demands were not therefore well un<lerstood by either government, and
for that reason — visiting tho penalty upon those necessarily to be charged
with the fault — they should not bear interest prior to their full elucida-
tion, which, it may be assumed, occurred before the former commission.''
"After several revolutions iu Venezuela, con-
Immigration Con- tiuued at intervals of greater or less duration
tract: Question as f^oni 1848, leavin^r the country in an unsettled
\^n ^ land almost chaotie condition, (leneral Paez
meats: Case of
Beales Nobles ft assumed the dictatorship on the 29th of August
Garrison. 1801, and from that time to the ratification of
the so-cnlled treaty of Coche, on the 2M of
May 1863, held possession of the capital at Caracas. During
the period of his government, however, outside of the province
of Cara<*as, the country was by no means pacified, but in one
part or another of its extensive territory was embroiled in civil
tanmlt and insurrection aimed against the ruling power, by
CONTRACT CLAIMS. 3549
the faction which it had succeeded in displacing. This state of
attiiirs was terminated by the treaty referred to, and in conse-
quence of it General Falcon succeeded Paez, who abdicated
his dictatorship, and became the President of the Republic on
the day of July 1863, and was confirmed in his place by
a constitutional convention which assembled on the 21st of
December 1863. The United States refused to recognize the
Paez government, and disavowed the act of its minister, Mr.
Oulver, in attempting to do so. .
" This being the condition of the government and the country,
a Colonel Nobles, in the winter and early spring of 1863, while
on a visit to Caracas for the purpose, succeeded in obtaining,
through the aid of his associate. Dr. Beales, a power of attorney
from General Paez to Simon Camacho, then consul of Venezuela
in New York, authorizing him to enter into contracts with the
said Nobles and Beales for the establishment of a steamship
service between New York and La Gnayra, and also for the
^establishment of a constant current of immigration to the Re-
public of Venezuela.' To carry these enterprises into due effect,
*the said consul will act without any limitation,' so the power
recites, -only following as far as possible the instruction to be
communicated to him by ray secretary general.' For fear that
this broad grant of power might be restrained or limited by
some unforeseen construction, the general proceeds to add,
' and, to remove at once any objections which might be urged
against the validity of the terms in which this authority is
granted, I, Jos^ Antonio Paez, Supreme Chief of the Republic
of Venezuela, hereby approve noic and for all times ivhatever
may be contracted for by Simon Camacho, consul of Venezuela
in New York, with respect to the said contracts for the estab.
lishment of a line of steamships between New York and La
Guayra, and the immigration and colonization scheme.'
''Under this power Camacho, on the Ist of May 1863, con-
tracted for the establishment of the steamship line, by the terms
of which the first steamer was to sail within one hundred days
from the date of the contract, which time was afterward, on
the 4th of June, extended to eight months in addition — that is,
say, eleven months in all. And which extension, by the way,
was contrary to the direction of the Secretary, and opposed to
one of the principal objects of the scheme. Other steamers
were to follow as they could be made ready, and they were to
be suitable for carrying the mails, twenty-five passengers and
3560 INTERNATIONAL ARBITRATIONS.
six hundred tons merchandise. Preference was to be given to
the effects, articles, and properties of the Government of Ven-
ezaela over all other cargoes and passengers, to be paid for,
however, at the usual rates charged to merchants or private
individuals. Officers and troops of the government were to be
carried at reduced rates. Two young men, to be selected by
the government, were also to be carried free of expense, in
order that they might receive practical instruction in naviga-
tion and the management of steam machinery. Other pro-
visions were made for the carriage free of seeds, plants, etc^,
not exported for i>rofit. For these services and some others
Gamacho agreed that Venezuela should pay $50,000 in gold
coin of the United States yearly, payable in monthly instal-
ments of $4,166.66, to be deducted from the 40 per cent duty
belonging to the government on the imports and exports carried
by the steamers, but this limitation was removed by the 12th
article of the contract, which expressly stipulated that any de-
ficiency on this account occurring during any month should be
made good by the receipts of the next month, although the com-
pany was to bear the loss on any deficiency at the end of the
year. The thirteenth article then provides that this payment
of $50,000 fthall continue for three years only from the date
of the contract, after which time the sum of $30,000 shall be
paid for the period of twenty-seven years, as provided in the
fourteenth article.
"The eighteenth article then stipulates for submission to ar-
bitration at Caracas: ^Any doubts, differences^ difficulties^ or
misunderstandings that may arise from, or have any connection
with, or in any manner relate to this contract, directly or in-
directly,^ and then, after providing that * the opinion of the two
arbitrators or the decision of the umpire, should there be one,
shall be considered as a judgment,' etc., goes on to say, *and,
therefore J this contract shall never, under any pretext or reason
whatever, he cause for any international claims or demands.^
This provision is found in both contracts. It has already been
observed that Messrs. Beales and Nobles, who alone sign this
contract, put themselves under no pecuniary obligation what-
ever for the due performance of its stipulations, except an in-
efl'ectual and meaningless pledge of person and property; but
it is now to be observed that these parties do not contract in
behalf of themselves at all, but ^in behalf of the stock company
to be formed upon the following terms and conditions,' etc.
CONTRACT CLAIMS. 3551
•^AccordiDgly this imagiuary company without a name, which
appears only by reference to it as a body yet to be formed, is
put forward by Beales and Nobles as the party agreeing to the
terms of a contract which they in its behalf bind themselves
and their successors to perform Beales and Nobles, except
as becoming security in the way mentioned for the company,
don't agree to anything. Each article in the contract begins
with a recital that ^ the company agrees and binds itself'. It is
too clear for argument that the contract was made by Beales
and Nobles in behalf of a company which was yet to be created,
and that, treating themselves as members of the said company,
as if it had already been established, sign, as ^members of said
company, for themselves and their successors,' accompanying
the signature with the pledge of their persons and properties
before referred to. Treating it as a contract, however, in the
absence of any bond for performance, Venezuela could only
look in case of failure to Beales and Nobles. The comp&ny
which had no existence certainly could not be responsible.
"This being the character of a contract which was to run tor
thirty years, made under a discretionary power of this kind,
the question arises whether General Paez, as the lawful defaeto
authority of the state, had the right in its name to grant such
a power. If he had, of course the contracts executed in pur-
suance of the power would be valid and binding upon any
succeeding government, and any attempt to annul them, with-
out compensation to the parties injured by the revocation,
would be unjustifiable and illegal. In stating the proposition
in this way it will be observed that we are assuming that the
contracts are a lawful emanation of the power, although on
careful analysis it will be perceived that, in the very concep-
tion of his authority, Mr. Caraacho exceeded his power. His
power was * to contract with either Dr. J. 0. Beales or Col-
onel W. H. Nobles, or with both, or with any other person or
company of acknowledged resiwnsibility.' He did neither or
any of these things as far as the steamship contract is con-
cerned. He entered into a contract, as we have before shown,
with Beales and Nobles, not in behalf of themselves, but in
behalf of a company yet to be organized. This was not a con-
tract with either Beales or Nobles severally, or with both jointly,
nor yet was it a contract with any other person or company of
acknowledged responsibility. It was a contract in behalf of a
company infuturo^ the responsibility of which, of course, could
f
3552 INTERNATIONAL ARBITRATIONS.
not be ascertained, aud wliose very existence was speculative
and conjectaral. But waiving tliis, and recurring to the ques-
tion as to whether the Paez government had the right to grant
the power toCamacho^it may be well enough to make one or two
general observations on the subject of de facto governments.
<< There is a well-recognized distinction between a state and
a government or the governing body. The state is a person in
law, and when once admitted into the family of states, pre-
serves its identity as an international person, until it is lost by
absorption in some other state, or by the continuance of an-
archy so prolonged as to render reconstitution imi)ossible or,
in a very high degree, improbable. (Halleck's International
Law, p. 29.) As a person invested with a will which is exerted
through the government as the organ or instrument of society, it
follows as a necessary consequence that mere internal changes
which result in the displacement of any particular organ for
the expression of this will, and the substitution of another,
can not alter the relations of the society to the other members
of the family of states as long as the state itself retains its
personality. The state remains, although the governments
may change; and international relations, if they are to have
any permanency or stability, can only be established between
states, and would rest upon a shifting foundation of sand if
accidental forms of government were substituted as their basis.
Idem enim est populus Eonianus sub regibus, consulibus, impe-
ratoribus, says Grotius, as an argument for the continued re-
si)onsibility of the state, although the particular character of
responsibility he is speaking of is an obligation to respect
treaties. (Grotius, I. II. chap, ix., v. 8^) All leagues and trea-
ties are national and will bind legal princes though made with
usurpers. (Tindall on Law of Nations; I Phillimore, p. 174.)
It is a clear position of the law of nations, says Kent, that
treaties are not affected nor positive obligations of any kind
with other powers or with creditors weakened by internal
changes in the form of government. The body politic is the
same although it may have a different organ of communication.
(Kent, vol. 1, pp. 25-20.) A state is responsible for the wrongs
done to the government or subjects of another state notwith-
standing any intermediate change in the form of government
or in the i)ersons of its rulers. Treaties of amity, commerce,
and real alliance remain in force; pnhUv debts, either to or
from the state, are neither canceled nor affected, (llalleck,
1». 77.)
CONTRACT CLAIMS. 3553
" A state subject to periodical changes in the form of its
government or in the persons of its rulers has a deeper interest,
I>erhaps, in the maintenance of this doctrine than another
more securely rooted in the principles of social order, but it
is absolutely necessary to the whole family of states, as the
only possible condition of intercourse between nations. If it
was not the duty of a state to respect its international obliga-
tions, notwithstanding domestic changes, either in the form
of the government or in the persons who exercise the govern-
ing power, it would be impossible for nations to deal with each
other with any assurance that their agreements would be car-
ried into effect, and the consequences would be disastrous on
the peace and well-being of the world. It may also be stated,
with great confidence, that a government de facto^ when once
invested with the powers which are necessary to give it that
character, can bind the state to the same extent and with the
same legal eft'ect as what is styled a government de jure.
Indeed, as Austin has pointed out, every government, properly
so called, is a government de facto. A government dejure but
not de facto, says he, is that which was a government, and
which, according to the view of the speaker ought still to be
a government, but, in point of fact, is not. (Austin, Juris,
vol. 1, 336.)
"As to what constitutes a government de facto is a question
that must necessarily depend somewhat upon the facts and
circumstances in the particular case to which it is proposed to
apply the principle. Austin speaks of it as a government
which presumably commands the habitual respect and obedi-
ence of the bulk of the people. Halleck, when speaking of
the power of a de faoto government to dispose of the public
domain or other property, describes it as a government sub-
mitted to by the great body of the people and recognized by
other states. Both these conditions are essential to the lawful
cession of the public domain of a state under the control of a
de facto government. (Halleck, p. 127.) Sir Matthew Hale
only consented to act as Judge under a government established
and recognized by other governments and in full possession,
defa^tOj of the records and power of the kingdom, after Crom-
well had declared he would rule by red gowns rather than by
red coats. (Hale's llist. Com. Law, p. 14.) It has been held
in England, that the courts of that country will not take
notice of a foreign government not recognized by the Covern-
ment of Great Britain. (City of Berne i\ The Bank of England,
f
3554 INTERNATIONAL ARBITRATIONS.
9 Yes. 347.) Tbe Supreme Court of tbe United States in
noting the features by which a government de facto is to be
diHcriminated, mentions as one of these recognition by a
foreign power. (Thorington, v. Smith, 8 Wal. p. 9.) So by
the same court it was held that a foreign government, in pos-
session of a portion of tlie territory of the United States, over
which it exercised undisputed dominion for the time being,
was a government de facto as far as the place occupied was
concerned, and entitled to demand and receive from the inhab-
itants local allegiance. (U. S. r. I^rice, 4 Wheat, p. 253'.) A
government defaeto, said Justice Nelson, delivering the opinion
of the court, is a government in the ])ossession of the supreme
power of the district of country over which its jurisdiction
extends. (Mauran v. Ins. Co. G W. p. 137.) And this power
has been elsewhere styled 'the ruling,' the ^supreme power' of
the country. (Nesbitt v. Lushington, 4 Term. 7(»3).
"While it has been uniformly held by all the writers upon
this subject that the substitution of one fonn of government
for another, or a mere chaii^^e in the person of the mling
power, will not affect the validity of state action, the appli-
cation of this rule seems to have been confined in the main to
the maintenance of treaty obligations, and responsibility for
wrongs and injuries, or torts, and where it has been extended
to claims contractual in their character, appears to have been
limited to public debts owing by one state to the citizens of
another. It has been the uniform practice of the United
States almost without exception to refuse intervention in
behalf of its citizens claiming for breach of contract against
the g()vernn)ent of a foreign power, and wherever it has inter-
fered, to restrict the character of its interference to good
oflices, which were delined by Secretary Fish as mere personal
unoflicial recommendations, (i* Whar. 23.S, i>, 664.) While
this has been the practice of Great Britain in similar cases,
the (iovernment of Her Majesty has been careful to maintain
that the refusal to intervene has been largely governed by
considerations of a domestic character, and not upon any
notion that a breach of contract between a subject of that
country and a foreign power, was not a wrong which might be
redressed by diplomatic intervention whenever the govern-
ment in its discretion saw lit to interfere. (Lord Palmerston's
circular to British representatives in 1848. Hall's Note, p. 257.)
*Ut would be diflicult, if not iini)ossible, to assign a good
reiison why, on principles of abstract right and justice, an
CONTRACT CLAIMS. 3555
injury to a citizen arising out of a refusal of a foreign power
to keep its contractual engagements, did not impose an obliga-
tion upon the government of his allegiance to seek redress
from the offending country, quite as binding as its recognized
duty to interfere in cases involving wrongs to person and
property. (Hall, p. 257.) The reasons assigned by our Secre-
taries of State for refusing any relief, except the mere tender
of personal good offices, in cases of breach of contract, seem
with some exceptions to be placed upon the broad ground that
the government has no right to compel another power to per-
form its contracts made with citizens of the United States.
(See Mr. Adams's instructions, April 29, 1823, cited 2 Whar.
p. 644.) Mr. Fish, as late as 1870, declares that the reason of
this policy is that claims based on contract are supposed to
stand upon a very different footing from those which arise
from injuries to person and property. (Whar. 2, p. 656.)
"But however this question may stand on principle it can
not be doubted that if the present claim was valid in other
respects it would be the duty of this commission, under the
convention between the United States and Venezuela, to make
an allowance of damages sufficient to compensate for the wrong,
notwithstanding the fact that it originated in a breach of pri-
vate contract between a citizen of one state and the govern-
ment of another.
'^Conceding now that a de facto government can bind the
state in a matter of private contract between it and the citi-
zens of another state, and that good faith as between nations
binds the state as a personality to fulfill the terms of its private
contracts, or pay damages for their non-fulfillment, notwith-
standing any subsequent change in the ruling powers, the
question first to be determined here is whether the govern-
ment of Paez was such a government. Before answering the
question, however, it is proi)er that we should state some of
the provisions of tlie second contract relating to the coloniza-
tion scheme and executed by Caniacho under the same power
given by Paez. By this contract Camacho cedes to the con-
tracting parties, tlieir associates and assigns, those public
lands which until now have not been ceded, in the parts of the
republic which they may select and in the quantities herein-
after explained. Tlie second article provides that 'the cession
shall be made of 1,000 Englisli acres for each person in them
during the first year of tlie cession, the contrtictors being
obliged to have for each 1,000 acres two persons in the second
5627— VOL. 4 21
r
3556 INTERNATIONAL ARBITRATIONS,
year, three in the third, four in the fourth, and so successively
one x>erson for each year up to the number of ten iu the space
of ten years, so that for each 1,000 acres there shall be ten
persons within ten years from this date' (date of contract 5th
of May 1863). To enable the contractors to carry out this
provision they are given * the right every year to select in the
. part of the republic where they may see tit 100,000 square acres
of land, either in one parcel or iu divided i>ortions • • •
provided that within two years from the date of such selection
of lands the contractors shall have placed two colonists for
each 1,000 square acres.'
^<By the tenth article it is stipulated that the mines which
may be found in the lands cede<l to this colonization enterprise
shall belong iu fee to the contractors, and in the generic term
mines are to be included, not only those of metal but also those
of petroleum, asphaltum, marble, coal, and others. Lawfiil
possession of the lands occui)ied is provided for, and provision
is also made for the selected lands. *The titles shall be given
in favor of the contractors the day the colonists arrive at a
Venezuelan ])ort,' while the colonists, who are to acquire in no
case more than fifty acres each, must wait a ye^r before they
receive a conveyance of title. If at the end of ten years the
contractors shall not have introduced the required nuniber of
colonists to entitle them to the number of acres of land as to
which they have already received the initial right of selection,
the privilege of purchasing the vacant lands within the limits
of the cession, at the rate of tifty cents an acre, is granted, on
the single condition that the contractors pay the expenses of
the survey.
"The eleventh article further provided that if within the
limits ceded to the colony, and before the introduction of the
colonists in the number and manner stipulated, the contractors
desire to buy the va(!ant lands, * they shall have the choice to do
so, being previously meiisured by the surveyors of the govern-
ment, paying half a dollar Venezuelan currency i)er acre, the
expense of the measurements of the lands to be paid by the
contractors.' By this contnict then there was a deed of cession
of a large portion of the territory of Venezuela, to be increased
indefinitely, at the rate of 100 acres for every immigrant, good,
bad, or indifferent, introduced into the country, along with the
conveyance, of what is usually reserved in such donations, of
a fee-sinix)le title to all the mines within the limits of the ces-
CONTRACT CLAIMS. 3557
sion, inclading therein everything of value that attaches to or
is found in the soil, with no obligation whatever on the con-
tractors to supply a single immigrant, and with the right to
purchase vacant lands within the limits of the cession at fifty
cents per acre.
'* Drawn up in solemn form, acknowledged before a notary,
and sealed, too, this instrument has all the exterior legal requi-
sites, both at the civil and common law, to protect it from crit-
icism and assault for want of consideration, but it is in fact no
contract mutually binding upon tlie parties ; but the concession
of a privilege by Venezuela to be availed of or not, and when
or never, as Messrs. Beales and Kobles in their discretion
saw fit.
''Such being the character of this immigration contract, it is
to be observed that the commissioner, Mr. Camacho, exceeded
his power in this case as well as in the execution of the steam-
ship contract. Under the power he had authority to contract
for the establishment of a constant current of immigration into
Venezuela, and he had no right to contract for anything else.
For the first vear of the cession it will be remembered that the
planting of one colonist entitled the contractors to one thousand
acre« of land for the first colonist settled, two thousand for the
second, and so on. If at the end of two years they had suc-
ceeded in planting two colonists they were then entitled to
select one hundred thousand acres of land, mines, and all as
defined by the contract ; and if at the end of ten years, they
had not furnished ten emigrants, but only the half of that
number they were at liberty to buy, at the rate of fifty cents an
acre, the excess of land remaining over and above the number
of emigrants agreed to be supi)lied. Not only so, but if they
saw fit to introduce no emigrants at all; if they believed that
the purchase of all the lands within the limits ceded to the
colony at a half dollar an acre in A'enezuelan currency, would
pay them better than the turning of a 'constant stream of im-
migration' into Venezuela, they were at liberty to abandon the
colonization scheme altogether, and turn the contract into a
land speculation pure and simple.
"It is obvious from this statement that the contract did not
provide for a constant current of immigration, and even if that
result had been an accidental consequence of what was pro-
vided for the terms of the power would not have been gratified.
It was not its intention to leave anything to accident or to a
3558 INTERNATIONAL ARBITRATIONS.
choice between two lines of conduct, as the one or the other
might seem best designed to promote the interests of the con-
tractors, but to impose upon Camacho an im])erative and abso-
lute oldigation, to exact compliance with tliis condition, as the
sole and paramount object of the power. Failure in this, what-
ever else may have been a<;complished, is failure in everything.
" Recurring now to the question of the lawfulness of the
power it may be more tlian doubted whether Paez, if he had
been suiueme chief, both de facto and de jure^ could have
granted such a ])Ower. It appears that the constitution of the
31st of December 1858, was in force when he assumed this
character. Title IX. of this constitution concerns the power
of congrens^ and among these powers, as prescribed in article
(>4, is the i)ower to decree what may be convenient for the ad-
ministration, preservation, nnd alienation of national property,
to assist in the immigration and colonization of foreigners, and
to encourage by means of legislation and by contracts the navi-
gation and canalization of rivers, the opening of roads, and
other works, provided they be of national utility (sections 13,
1(), 30). This is a rlear devolution of the authority exercised
by Paez upon the legislative department of the government,
and unless we assume that the supreme chief for the time being
in the possession of the capital and of the province of Caracas,
had supi)lanted completely the constitution, and could exercise
in his own person the functions of the executive as well as the
legislative department, it is very clear that the authority
granted to Camacho was an excess of power in itself as to both
contracts.
'•'We have already, in a general way, leferred to the dis-
tracted condition of affairs at the time he assumed control of
the government, and now as a matter of more historical than
legal interest, perhaps, it may not be out of place to quote the
j)reamble of the decree of the lOth of JSei)teniber 1861, under
which he took i)ossession of the government as supreme chief
of Venezuela :
" ' The people of Carumn^ to whom entire liberty was left to
deliberate in the use of their sovereignty, si)ontaneously rati-
fied this vote (that of the defenders of society within the prov-
inie of Caracas), and Jippointetl me civil and military chief ot
the republic, with full power to i)acify and reconstruct it under
the popular republican form. At La Victoria I was met by
the commission sent to present me the vote of the capital (Cara-
CONTRACT CLAIMS. 3559
cas) and to request my acceptance. But 1 feel satisfied, fully
satisfied, witli the uniformity of the vote of Caracas and of
this province (Caracas). I am still ignorant of the-will of the
republic. National opinion is, and has always been, the guide
of my conduct.'
" Venezuela at that time was composed of twenty one prov-
inces, Cjiracas, of course, being the i)rincii)al one, as the seat
of the capital, but there is no inference to be drawn from the
mere possession of the capital as to the established character
of a government de facto claiming to be such. One fa<$tion may
have possession of the capital to-day, another to-morrow, while
the authority of neither is recognized and established as the
supreme i)ower of the country over which its jurisdiction ex-
tends, or rather over the district [over which] each is attempt-
ing to extend its Jurisdiction. This government lasted about
twenty months, and was succeeded by the Falcon administra-
tion, which was also in possession of the capital when the
contracts were annulled. How much of the habitual respect
of the bulk of the peoi)le outside of the province of Caracas it
managed to acquire before its overthrow we have no means of
knowing, but, if the preamble of the decree just quoted affords
any reliable evidence of the condition of affairs at that time,
there is not much ground for believing that the Paez govern-
ment was founded on any tenure more reliable than the ability
to maintain its authority for a limited period within a cir-
cumscribed district of the country.
"Such being the internal condition of the country and the
war of factions with varying success, the United States, while
maintaining relations of intercourse with the state itself,
through whatever organ of government might, for the time
being, have the ascendaui^y and occupy the capital, refused to
recognize the government of Paez as tlie de facto government
of the state, rebuked its minister for attempting to do so, and
promptly repudiated liis act. This treatment of the Paez gov-
ernment was in strict accordance with the settled policy of the
United States from the organization of the government. All
questions, said President Jackson, relative to the government
of foreign nations, whether of the Old or New World, have
been treated by the United States as questions of /ac^ only,
and they have continuously abstained from deciding on them
until the clearest evidence was in their i^ossession to enable
them to decide correctly. (Message to Congress, 21st Decem-
3560 INTERNATIONAL ARBITRATIONS.
ber, 183<). Rei)eiite<l by Mr. Forsytli in his answer to the Texan
Envoy in 1837.)
" It is a rule of our courts that tlie juditaal department of
the govemnient in such cases is bound by the action of the
political or executive department, the same rule which was
laid down by the Lord Chancellor of (ireat Britain in the case
of the (.'ity of Berne v. The Bank of England, before cited.
When a civil war, says Chief Justice Marsluill, rages in a for-
eign nation, one part of which separates itself from the old
established goverinnent, the courts of the Union must view
such newly (?onstituted government as it is viewed by the leg-
islative and executive departments of the Government of the
ITnited States. (U. S. r. Palmer, 3 Wheat, p. 644; Rose r.
Himely, 4 C. p. i*72.) Besides the case of the Citj' of Beme,
this doctrine has been recognized in England in several cases
directly growing out of transactions with the South American
republics. In the case of Jones r. Garcia del Bio, where a bill
had been lik^d by subscribers t<) a Peruvian loan for an account,
the answer to which admitted that no such government as the
Peruvian Government had been recognized by His Miyesty's
government, Loid l''ldon said, 'What right have I as the king's
judge to interfere upon the subject of a contract with a coun-
try whic^h ho does not rec'ognizet' (Turn, and Bus. 1, p. 299;
Taylor r, Barclay, 2 Sim. p. 213; The Colombian (lovernment
r. Rothschild, I Sim. p. 100; 3 Bing. p. 432.)
"But if it be re])lied to this that the (juestion of a de facto
government in its relations to recognition by other govern-
ments is a large (juestion to be determined on considerations
of grave ]»ublic jmlicy, and without straining analogy can not
be associated with the narrower (juestion of piivate contract-
ual obligations, entered into by a government purporting to
be such, as tliey come for adjudication before an international
tribunal like this, wliich is not bound by the rule of policy
referred to, it may nevertheless be answered, that the question
of fact involved in tlie determination of the lawfulness of such
a government when its authority is disi)uted, is a question
absolutely ne(*essary to be established before a correct judg-
ment as to the law can be pronounced. While the failure or
refusal of the United States to recognize the government of
Paez is not binding upon us as a court in deterniining the
question whether that government was a government de facto
or not, the necessity of determining that question, in some way
CONTRACT CLAIMS. 3561
as an essential prerequisite absolutely vital to the correct
determination of the main issue involved, is just as binding
and imperative, as it would be upon any other tribunal empow-
ered to adjudicate the question. In the absence of presump-
tions, which, in the condition the country was at the time,
can not be made in favor of the lawfulness of the government,
resort must be had to evidence to establish its true character,
as ally other fact in doubt is required to be proved, and on this
question oi fact the failure of the United States to recognize
the Paez government is a fact which can not be ignored.
'^The argument of the learned counsel for the United States
and the claimants was addressed largely to establishing the
proposition that a government de facto was invested with the
same authority to conclude binding contracts as a government
dejure, and having succeeded in this, then proceeded upon the
pure assumption of the petition that the Government of Vene-
zuela was a government defa^^to^ when this i)ower was granted;
but this, it is not necessary to say. is not only the very ques-
tion at issue, but the duty of establishing the affirmative rests
upon the jietitioner. Ordinarily the authority" of the ruling
power in a state, when the instrument of evidence is once
duly authenticated, would not be drawn in (question for the
reason, as already given, that states are immortal, and in the
course of time, according to varying degrees of stability,
acquire a fixed personal status like that of an individual, with
a capability of binding themselves with a like freedom from
question and suspicion. No one would question an authority
given under the great seal of Great Britain or the United
States, and no one would question the lawfulness of a power
enianating from the United States of Venezuela under the
happier conditions of government which now prevail in that
country. But in a case like this, where no assistance can be
derived from presumptions, the petition must be treated as if
it had averred in terms that the power, in virtue of which
these contracts were executed, was itself a deed, not only duly
authenticated, as an instrument passing from the hands of its
apparent maker, but also as the medium through which the
undisputed authority of the state was conveyed, and by which
it was bound. A man claiming under a deed must prove it,
and if there is any question as to the power of the grantor to
do the deed he must establish that also. The mere fact of
execution is a matter of formal evidence, but the right to do
3562 INTERNATIONAL ARBITRATIONS.
the act, of which tlie ])aperm8tniment usually called the deed
supplies the proof, is the essential issue in controversies of this
character. Treating this petition, then, as setting ap not
merely the paper power to Caiuacho, but as asserting the
actual authority of Paez to issue such a ]>ower, as the fonuda-
tion stone on which this claim is erected, we are confronted by
the general denial which Venezuela has interposed to the peti-
tion, and which, under our rules, puts in issue every essential
constituent of the petitioner's claim. The question is thus
raised whether, conceding that a de facto government, accord-
ing to Austin's detinition, has the same authority to bind the
state as a government dejurej the Paez government can lay
claim to such a character, and on this c^uestion the burden of
proof is on the claimants.
''It wcmld be enough to say that they have not discharged
this obligation, but from the references we have made to the
origin and character of this government it would seem reason-
ably clear that if the claimants had assumed to carry such a
burden they must have failed in the undertaking.
''But, passing this, it is further to be observed that the
clause in both of the contracts providing for arbitration at
Canwjas dearly shows that neither of them, on any pretext,
was ever to be made cause for an international claim. It is
true that it has been urged in answer to this, that both con-
tracts were struck down by the decrees annuling them, and
that the arbitral clause fell with them. But that argument is
more specious than real. It is conceded, of course, that one
party to a contract can not break it at his jileasnre and with-
out the consent of the other, but when both parties agree, as
in this case, that any doubts, dill'eiences, difficulties, or mis-
understandings of any class or nature whatever that may arise
from, or have any connection with, or in any manner relate to
the contract shall be referred to arbitration, and one of the
parties declares that he is not bound by the contract and
attempts to annul it. then the attempt to revoke, of necessity,
if language has any meanin;^, being a 'difiiiculty' relative to
the contract, must be one of the cpK^stions agreed to be sub-
mitted. \i^ these contracts had been good and valid in other
respetrts, and the Messrs. Beales and Nobles had demanded
that the 'dilliculty' growing out of their annulment should be
referred to arbitration as i)rovided, and the government at
Caracas had refused its asseiii to th(» submission, then a ques>
CONTRACT CLAIMS. 3563
tion might have arisen whether there was not such a denial
of justice on the part of that government as woukl have war-
ranted the interposition of the good offices of the United
States in behalf of the injured parties. No such demand ap-
pears to have been made, but the case was submitted to the
old commission under the convention of 1866, and was decided
by the umpire upon the assumption just stated, that the
decrees annulled the provision as to arbitration, and thus pro-
duced the very result of converting into cause for an inter-
national claim a difficulty rehiting to the contract which by its
terms expressed in the most solemn manner was never to be
made such on any pretext whatever. A distinction was made
in argument between a reference of differences or misunder-
standings arising out of the construction of the contracts, and
a difficulty as to the existence of the contract itself, it being
admitted that a controversy of the first kind was legitimate
matter for arbitration, but the second was not, or rather could
not be made so, because when the contract was annulled there
was no longer any provision for arbitration. But that assumes
the right to annul without making the revocation a subject of
arbitral decision, and such assumption can not be made with-
out the further assumption that a difficulty relative to the con-
tract does not and was not intended to include a question as
to whether there was such a contract. The case seems to us
too clear for doubt, and on this ground alone, if there was no
other, we should reject the claim.
'^1. On the whole our conclusions are that by the constitu-
tion of Venezuela the lawful and undisputed government of
that country could not, by its executive department alone,
have granted the power in question, and therefore the grant
by Paez was without lawful authority, even if the de facto
character of his government had been established, as to which
there is not only a failure of proof but the evidence seems the
other way.
'^ 2. That both the contracts purporting to have been made
in pursuance of the power contain provisions and stipulations
clearly in excess of its terms, and where drawn within the
limitations of the power have failed to conform to the pre-
scribed requirements as to the parties with whom the contrtujts
were authorized.
"3. That the contracts provide a mode of settlement by
arbitration for any differences or difficulties that may arise as
3564 INTERNATIONAL ARBITRATIONS.
to their legal validity which is iDconsistent with any attempt
to make them cause for an international claim on any pretext
whatever.
^< 4. That there is no evidence satisfactory to ns that the peti-
tioners' testator was interested to the extent of one- third of
tlie claim for the damages alleged to have been suffered by the
annulment of the said contracts, or that he ever expended any
money or incniTed any liability, or did anything in execution
of the said c^)ntractH; and, treating the i)etitiouers represent-
ing their testator as original claimants, we can discover no
ground on which to base an award in their favor.
*'r>. That the evidence seems to indicate very strongly that
the petitioners' testator came into ])ossession of a single cer-
tificate, which was found among his pai)ers, by purchase,
hyiKithecation, or some other channel than his interest in the
original claim, and if the i)etitioners are to be regarded as
claiming derivatively in the right of 6o/m fide holders for value
under the 9th section of the treaty, the claim must be rejected,
because for the reasons stated the original claim itself is with-
out merit, and fails therefore within the i)urview of the first
article of the sui)plementary convention. The claim is accord-
ingly disaUowed, and the iietition dismissed/'
Fiudlay, coiiiiuisBioiicr, lor thr roQiniisHiuii, Mvlrille E. Day and David
K. (lai'naonj an sirrririntj vxeciitorH of Cornelius K. Harrison v, Venezuela^
No. lis, I'nitcd StatcH and Venezuelan (MaiiiiH ConiiniHsiou, convention of
Decern lier 5, issr>.
Mr. Jjittlc delivered the following separate opinion:
''I am conHtrained, with hi;;li respect, t(» dissent from the third conclii-
Bion. The declaration of auniilnieut of the contract 8 by the Veneznelan
Hxecutive was tantamount to a refusal to arbitrate. Declaring the whole
of the <-ontraetM at an end, it, the company had a right to assume, woald
not countenance action under any of their iirovisions. The govemment
under the contracts bad a voice in the selection of arbitrators. Its action
closed the door, therefore, to arbitration, and the failure to resort to that
means of adjustment can not, in my Judgment, be riglitfully set ap as a
defensi* here in its belialf. Still, tlie eontraets being invalid (if forno
otlier reason because in e\<*e8s of Camaclio's autliority, which, being of
so high and extraonhnary acharaeter, shoubl have been strictly construed
an<l action <-(»ntined elearly within its terms), neither the arbitration
clauses nor the decrees of annulment are of moment, and I Join in the
decision."
A claim was made against ^'enezuela for
Case of Fiannagan, bi-euches of a certain contract or concessiou.
Bradley, Clark & . . , .. , , • i.i
„ ^ Among the provisions ol the concession, there
was onetotheetfect that nothing relating to the
contract nor any decision upon matters growing out of it should
CONTRACT CLAIMS. 3565
ever be made the subject of an international reclamation, but
that all doubts and controversies of any kind whatsoever
affecting the agreement should be referred to the judicial tri-
bunals of Venezuela and there determined in the ordinary
course of law.
Findlay, commissioner, speaking for a majority of the com-
mission, said :
" The failure to pay the stock subscription, in our opinion,
was a clear violation of the terms of the concession, but it is
equally clear that Venezuela, either from experience or fore-
cast, realized the importance of referring -all questions which
might arise in the prosecution of the enterprise to the juris
diction of her own tribunals, and expressly excluded them from
the sphere of international reclamations.
''Nothing could be clearer, more comprehensive, or specific
than the language of the concession upon this point. Even
when such questions were transferred for adjudication by her
courts, such was her anxiety to avoid any possible international
entanglement, that she resorted to the doubtful expedient,
perhaps, of providing that the de(iision of her courts should
not be drawn in question by foreign intervention. Whether
a decision so made in palpable violation of the rights of the
parties could be allowed to stand on a claim of denial of jus-
tice is a question not necessary for the decision of this case,
but we should think it more than doubtful; but the insertion
of such a provision shows how solicitous she was to withdraw
the concession and the cpiestions which might arise under it
from every possible cognizance and jurisdiction except her
own. This she certainly had a right to do, and the conces-
sionaries, if we may adopt that term, had an equal right to
decline the concession on such terms. When they made their
contract they knew exactly what they were doing and with
whom they were contracting. They knew that Venezuela had
been in a constant state of war and civil commotion almost
from her birth, and they knew that a reference of questions in
which they were interested to the courts of that country, sit-
ting in the midst of such confusion and anarchy, might mean
practically a failure to have the questions adjudicated at all,
or the risk of an adverse decision, prompted by prejudice or
partisanship. But in spite of all this they agreed that their
whole case, whatever it might be, growing out of the conces-
sion, should be finally disposed of by the domestic tribunals
of that country.
"Have they any standing before this commission f A ma-
jority of its members answered this question in the negative
in the case of Jieales, Nobles, and Garrison, and they have
learned nothing since which induces them to think that they
were wrong in that conclusion.
" We have no right to make a contract which the parties
themselves did not make, and we would surely be doing so if
3566 INTERNATIONAL ARBITRATIONS.
we undertook to make that the subject of an international claim,
to be adjudicated by this commission, in spite of their own
voluntary undertaking tliat it was never to be made such, and
should be determined in the municipal tribunals of the country
with respect to which tlie controversy arose. Had the claim-
ants resorted to the courts of Venezuela for relief and been
refused in a case clearly showing that there was a denial of
justice, a diftlcult (piestion, as before observed, would have
been presented as to how far a commission of this kind could
afford redress, when the claimants had not only submitted
themselves to the exclusive jurisdiction of another tribunal,
but had also agreed that any decision of that tribunal should
not be made the basis or occasion of an international claim.
In point of fact, no effort api)ears to have been made to invoke
the aid of the Venezuelan courts, but the claimants made their
appeal directly to the executive dei)artrnent of the govern-
ment. Whatever may have been the practical outcome of a
resort to the courts for assistance, however abortive such an
attemjit may have proved, we have no right to assume the
folly or futility of such a course in the face of the solemn stipu-
lation of the parties that they would look to thjit quarter for
relief and no other. It is to be i)resumed that they would not
have made such a stii)ulation if the laws and courts of Vene-
zuela were helpless in affording them a remedy ; but whether
they were or not, so they miide their be<l, and so they must lie
in it.^'
Henry Woodruff and FJannayun, I>radUif, Clark «V- Co, v. Venezutlaj Noe.
20, 25, I'liited States and Vene/uela ClaimH ( 'oinmission, ooiiveution of
Decremhor 5, 188r».
Little, roiinnissioiirr, diHsentin;;, said :
•'TIk^ majority of tliu coinniissioii express doubt, whether that part of
article 20 which biuds the Aiiierican <-oiH'es8i(>narie« not to make a judg-
ment, (>t(! J the Hiibjcrt of an international (;laim is valid. I would go
further, ajipIyiDg the objertion to and holding invalid all that part inhib-
iting international rtMlamatitniB. I do not bi>li<>v<' a eontract between a
Bovereij^n an<l a citizen t>f a f<irei«;n country nnt to make matters of differ-
ence or diH])ute, arising out of an agreement between them or out of any-
thing else, the subject of an international claim, is consonant with Boand
public polij'v, or within their competcMice.
"It would involve y;r(; tnuto a modification or suspension of the public
law, and enable the sovereign in that instance to disn'gard his duty
towards the citizen's own govirnmcnt. If a state may do so in a single
instance, it mav in all cases. \\\ tliis means it could easilv av<iid a moflt
important ])art of its intcrnati<mal obligations. It would only have to
provide by law that all contracts made within its jurisdiction should l>e
subject to sut'h inhibitory con<liti<)n. l\>r such a law, if vali<l, would
form the ]>art of every contract therein made as fully as if expressed in
terius upon its face. Thus we should have the sjiectaclc of a state modi-
fying the international law relative to itsi'lfl The st.itement of the i)rop-
osition is its own refutation. Tin- consent of the foreign <'itizens con-
cerned can. in my belief, nuike no dill'erence — confer no such authority.
CONTRACT CLAIMS. 3567
Sach language as is employed in article 20, contemplates the potential
doing of that by the sovereign towards the foreign citizen for which an
international reclamation may rightfully be made under ordinary circum-
stances. Whenever that situation arises, that is, whenever a wrong occurs
of such a character as to justify diplomatic interference, the government
of the citizen at once becomes a party concerned. Its rights and obliga-
tions in the premises cannot be affected by any precedent agreement to
which it is not a party. Its obligation to protect its own citizen is
inalienable. He, in my Judgment, can no more contract against it than
he can against municipal protection.
**A citizen may, no doubt, lawfully agree to settle his controversies
with a foreign state in any reasonable mode or before any sj)ecified tri-
bunal. But the agreement must not involve the exclusion of interna-
tional reclamation. That question sovereigns only can deal with.
** So much of article 20 as refers to that subject I regard as a nullity,
and therefore cannot, oven if in harmony with my colleagues as to the
comprehension of its terms, concur in the dismissal of the claims on that
ground."
"Thomas U. Walter, a citizen and an emi-
Biyertion of Pledged nent architect and civil engineer of the United
Beyenuei : Compu- g^g^t^g ^^ ^he year 1843 entered into a contract
tation of Interest: ' *^
Walter's Case. ^^^^^ ^^^^ municipality of La Guayra, the Gov-
ernment of Venezuela lending its concuiTence
and endorsement, whereby he agreed, not later than the end of
the year 1840, to construct a mole and breakwater with appur-
tenant works, at that port, for 275,000 pesos in coin or its equiva-
lent in currency. The sum of 150,000 pesos was to be and was
l)aid by the completion of the work, which occurred within the
time limited. The residue was to be discharged from certain
entrance fees or duties received at the custom-house of La
Guayra, with interest at the rate of 5 per cent per annum, pay-
ments to begin two years after such completion, to occur quar-
terly or semiyearly, as said municipality might elect, and to
equal 2 per cent of the then import duties.
"Payments and settlements were made by and with the
government from time to time until June 30, 1858, when the
balance was reduced to 24, 956-^^„-o pesos.
"Theretofore the government had diverted the revenues so
set apart by agreement for the discharge of this debt, and
stopped further payment in derogation of Mr. Walter's rights.
Since then nothing has been paid, notwithstanding the justice
of the claim has never been controverted. In 1805 the claim
was presented to the Venezuelan Government through the
American legation at Caracas. It comes within the purview
of the present treaty.
3568 INTERNATIONAL ARBITRATIONS.
"The only (luestion made resi)ectiiig: it before us is as to the
com put at ion of interest.
"It is claimed on the one hand that interest should be com-
put<?d with quarterly, or at least, with semiannual rests, as that
mode had been ado])ted or sanctioned b\^ the government during
the continuance of the payments; and on the other, that only
simple interest is allowable. We take the latter view. This
was a Venezuelan contrat^t where com|>ound interest was pro-
hibited by law. If tlie Governnient chose to allow it in disre-
gard of the law, that docs not authorize ns to do so; nor are
we called upon to review and rectify the action of the
government in that legard.
'•The allowance will be for 24,U56 ,■;;•,> ]>esos with 5 per cent
from June 30, 185S, to Sci)tember 2, 1890, inclusive, expressed
in gold coin of the Ignited States.
•'There are two 2)Cf<os known to commerce, the peso fu^rte And
tiny 2)e8o HvncUlo, The former was the old Spanish silver dollar
e(|ual in value, until modern years, the world over, to 100 cents
in gold. The latter is meant when the general term is used in
transactions without thecjualifying word. It has varied some-
what in value, from time to time. According to letters received
by the commission from the director of the mint and other
sources of information, we estimate its present value at 76 centfi
to the dollar, expressed in gold coin of the United States.
"The entry may, therefore, be fori} 18,820.40, gold coin of the
United States of America, as of* Sei)tember 1, in favor of the
claimant.''
Littli*, roiiiiuissioner, for tho coniiiiissioii, Amanda G. ira/A-er, executrix^
V. f'fiiczuela. IJnitcil States jind Veiio/iiol;i Claims roinmission, convention
of December 5, 1SS5.
A claiuiaiit against Votx^/iioln alleged as the
«ua.i-coiitraotnai^^.^^j^ of Ills (loinatid tliat bv prompt advice
Claim: ODwyers •
Q^g tendered to (icneral Paez at a critical moment
in the battle of Carabobo he saved the for-
tunes of the day and enabl«^d Venezm^la to establish her inde-
jjendence. Findlay, commissioner, delivering the opinion of
the commission, said: "This is the kind of deed that usually
calls for a monument, or some other testimonial of national
grjititude; but as mere disi)ensers of Justice w(» nmst disallow
the claim and dismiss the petition.''
Jikhard O'lUvyer v. I'mvciiela, No. I»IJ, rnit«*«l States and Ven»*ziiela Com-
mission, convention ot' Decemher 5, ISs.*).
CONTRACT CLAIMS. 3569
9. Convention between the United States and Chile
OF August 7, 1892.
Claimant, a citizen of Chile, asked compeu-
Autbori^ of Kpio- g^^.^j^ ^^^ professional services to the United
irall'i Oate States before the Chilean courts m the extra-
dition of William A. Bushnell, in 1889. He
averred that Mr. Koberts, the United States minister at San-
tiago, requested him to represent the legation of the United
States; that he complied, and, when he incidentally referred
to his remuneration, was told that there were no "instructions
as to expenses, but to have no concern in the matter, as he
would be paid by the United States for his services;" that
the case lasted more than six months, and was twice argued
before the Supreme Court of Chile, which decided that the
criminal should be extradited; that he presented his bill to
Mr. Koberts, who forwarded it to the State Department; that
on the 17th of September 1889 the Department returned it
to Mr. Egau, then United States minister, with the declaration
"that the Government of the United States assumed no re-
sponsibility in the premises;" that when the bill was again
presented to the Government of the Ignited States through
Mr. Egan, Mr. Blaine, who had then become Secretary of
State, returned it with the statement that it had been for-
warded to the authorities of the State of New York, who had
replied that, while claimant had rendered service in the case,
he did so as attorney for the West Coast Telephone Com-
pany, which was interested in Bushnell's extradition. Claim-
ant asked for $6,000 in United States gold.
The agent of the United States demurred to the claim on
the ground (1) that by section 3732 of the lievised Statutes of
the United States it was forbidden to make any ex)ntract or
purchase on behalf of the United States except by authority
of law, except in certain specified cases; (2) that a minister
was not authorized to employ counsel in extradition cases
(Moore on Extradition, I. COT); (3) that, as the oti'ense charged
was a violation of State law, only the State was responsible
for the expenses (id. 004); (4) that claimant, if he could estab-
lish his contract, had a remedy against the United States in
the courts (Revised Statutes, sec. 1068; Supplement to the
Revised Statutes, I. 559, 560).
The agent of Chile maintained that the question whether
3570 INTERNATIONAL ARIUTRATIONS.
Mr. Roberts had authority from the Secretary of State to
employ claimant was immaterial before the commLssion; that,
Mr. Roberts being the representative of the United States, this
question lay between him and his government; that as the
United States was the demanding government, it should pay
the expenses (Calvo, Droit Int. par. 400; Opinions of the
Attorneys-General, VII. 012; ^loore on Extradition, I. 599);
that the fact that the courts of the United States might have
jurisdiction of the claim, would deprive the commission of
jurisdiction under the convention.
The commission rendered the following decision:
** In the opinion of the commission the sections of the Re-
vised Statutes of the United States (sections 732 and 5278)
upon wiiich the res])ondent government bases its demurrer
are not applicable to the relations that subsisted between the
claimant and the honorable minister at Santiago,
"The first i>rovision seems to have been enacted for the
regulation of the otticers of the United States in the ])erform-
ance of their duties, and the second as a rule for the settle-
ment of expenses between the States and the National Gov-
ernment.
*' By no rule or legal prescription was the memorialist bound
to know the sections of the Revised Statutes or to act in con-
formity with them.
"On the contrary, he knew that the minister of the United
States was instructed by his government to proceed in a mat-
ter of extradition, and that the i)roceedings before the Chilean
court couhl only be conducted through an intermediary coun-
sel. Mr. Trumbull was requested by the minister to act as
counsel.
"He was justilied in presuming that the minister of the
United States acted in acc^ordance with his instructions from
the Secretary of State, and also pursuant to the rule that the
expenses of extradition, including fees of counsel, are paid
by the demanding State.
"He was right also in assuming that the minister was au-
thorized to say to him, "to have no concern in the matter, as
he (Trumbull) would be paid by the United States Govern-
ment for his services."
" Whether the honorable minister of the United States at
Santiago exceeded his authority in ent<n'ing into the contract
with Mr. Trumbull is a question that, for the purposes of the
demurrer, is of no importance.
"As a representative of the United States he made, as is
confessed by the demurrer, a jjromise in the name of his gov-
ernment, which, according to the rules of the responsibility of
governments for acts performed by their agents in foreign
countries, can not be repudiated. (( 'alvo, Dictionaire de Droit
CONTRACT CLAIMS. 3571
International et Priv<'*, vol. 11, p. 170. Also Oalvo, Droit In-
ternational, vol. 1, § 417.)
^^As to the argument that the claimant has a complete
remedy in the courts of tlie United States, it is to be said that
the competency of this commission to take Jurisdiction of this
claim can not be denied under the authority to settle and
adjust amicably all claims of citizens of Chile and of the
United States against the government of either country.
"The demurrer filed by the agent of the respondent govern-
ment is therefore overruled.
"The commissioner of Chile concurs with his honorable col-
leagues in the foregoing decision in so far as it establishes
the responsibility of the government for the acts of its agents,
but does not accept, without certain limitations, the last point
in said decision."
Ricardo L. Trumbull v. Chilej \o. 27^ United States and Chilean Claims
Commission, ('<mveutiou of August 7, 1892.
T. Kllet Hodgskin, a citizen of the United
V^j ' ^*. * States, submitted to the mixed commission
Landrean Claim.
under the convention between the United
States and Chile of August 7, 1892, a claim against the latter
government based on the discovery in Peru of certain guano
deposits by J. Theophile Landreau, a citizen of France. A
similar claim was filed by J. C. Landreau, a naturalized citizen
of the United States. Both claims were dismissed by the
commission on demurrer, Mr. Goode, the United States com-
missioner, dissenting.
The opinion of thf. commission in the case of Hodgskin
(No. 39) was as follows:
"T. Ellet Hodgskin, in his memorial, numbered 39, claims
from the Government of Chile a sum ecjuivalent to a third of
the proceeds of certain guano beds situated in the territory
of Peru, which, as he says, were received by the Government
of Chile during the war with the Kepublic of Peru.
"The claimant declares that he deduces his right from a
cession that J. Theophile Landreau, a French citizen and dis-
coverer of those deposits of guano, made to his father, James B.
Hodgskin, an American citi/en.
"In behalf of his alleged right Hodgskin declares that J.
Theophile Landreau, relying upon a decree appearing among
the documents, marked * Exhibit 1,' and on the public faith of
the Government of Peru, dedicated himself for several years
to the discovery of new deposits of gnano, in the belief that
the laws then in force and the aforementioned decree secured
to him the third i)art of the minerals or other natural sub-
stances that he might discover, or a third of the value thereof;
that said Landreau was fortunate in his efforts and succeeded
5627— V(^L. 4 22
k
3572 INTERNATIONAL ARBITRATIONS.
in discovennpf, between tlie years 1844 and 185C, v<i1aab]e de-
poHilH of ^uano; that later on he aided Peru to raise its credit
and to contract loans abroad; that in spite of the great advan-
tages obtained by that republic from the discoveries made by
J. Theophile Landreau and of the many millions of dollars
received from the sale of said guano, neither said Landreau
nor his successors or representatives, nor the ]>resent claimant,
had received any compensation from the Government of Peru
when, in 1879, the war with Chile broke out; that the Govern-
ment of Peru rendered to the Government of Chile, as a war
indemnity, certain territories in which the deposits of guano
were located, and that the claimant had at that time, individ-
ually and as trustee, a just and legal claim against the Gov-
ernment of Peru in regard to the deposits of guano and its
products, upon which he had a lien.
*^The claimant adds that the documents on which his claim
is based are to be found in * Exhibit No. 1,' which accompanies
the memorial, and he calls special attention to a decree promul-
gated by the President of the republic, which is, in his judg-
ment, the basis of this controversy.
"From the documents in 'Exhibit 1 ' it is seen that in 1814
Jean Theophile Landreau, a French citizen, understanding that
the Government of I*eru had solemnly bound itself to reward
in a specific manner any individual who should make a discov-
ery that would increase the wealth of the country, determined
to devote himself to a careful scientific exjjloration and exam-
ination of the territory of Peru, with a view to discover depos-
its of guano, the existence of which was unknown to the
government.
"On the 30th of December, 1859, Landreau Jiddressed the
following petition to the minister of finance of Peru :
" ' YouE Excellency: tiean Theophile Landreau, a native
of France and a resident of this city, with due respect pre-
sents himself before your excellency and states that he has
discovered certain guano de]»osits on the coast of Peru and is
ready to point out the location and bring samples of the guano
immediately the government informs him what his recompense
will be; soliciting, at the same time, a list of the deposits known
to the government up to this date.
" 'J. T. Landreau.'
"The minister of finance of J*eru requested information from
the director jeneral ile hacienda (director-general of finance)
with regard to the preceding petition, and this functionary, on
the 5th of January 18()0, set forth *the necessity of proving
that the deposits of guano mentioned in the petition were bona
fide new discoveries. That the government was aware that the
(toast district of Peru abounded in deposits of guano, and that
all of them belonged to the state; but, in case Jjandreau's pe-
tition referred to deposits that were new, then it would be but
fair to agree to his receiving a share, as a discoverer; but that
CONTRACT CLAIMS. 3573
the minister of finance was the only person who could desig-
nate the said share, there being no law bearing on the case?
*'The said petition was then referred to the attorney-general
(M. Villaran), who, upon the 18th of January 1860, reported
that he was of the same opinion as the director of finance, and
suggested the necessity of ascertaining if it was a fact that
Landreau's discoveries of deposits were positively new, as in
that case he considered the minister of finance could accept
Landreau's declaration and assign him one third of the value
of the guano that he had discovered, in accordance with the
6th paragraph of the vote of the council of state dated the
13th of February 1833, but insisting that a search should be
made to decide whether the deposits mentioned by Landreau
had ever been previously known, as no premium could be
allotted to him if they were not newly discovered.
"The6tli paragraph of the decree to which Attorney-Gen-
eral Villaran refers is, as cited by claimant, as follows:
" < Lima, February 13, 1833,
'**The council of state is of the opinion that the Executive
be made acquainted with the following: That any one, within
a year after the publication of these presents, who shall have
discovered property belonging to any suppressed convents, or
other property belonging to the state, shall have a right to a
third p«art of said ]>roperty.
'* ' Those who shall have been convicted of having kept secret
the di8<;overy of any property after the year has exjjired will
be condemned to pay double the amount of its value.'
"Two years having elapsed without the Peruvian Govern-
ment adopting a resolution regarding Landreau's petition, he
renewed his application on the 2d of December 1862.
"This latter api)eal was referred to the attorney-general
(Ureta), who, on the 31st of October 1863, gave an opinion
contradicting that of his i)rede(essor, Attorney General Vil-
laran, as follows:
"'That Lan<lreau, having asked tchat the recompeuHe would
be for his discoveries, was answered by Dr. Villaran on the
18th of January 1860, that, according to his opinion, he was
entitled to one third part of the value of the jiroperty discov-
ered, tins being the general practice and in accordance with
the 6th paragraph of the vote of the council of state (February
13-, 1883); but it must be borne in mind that said premium is
only meant for those who should discover national property
which is nnlaicfully possessed, for as soon as it becomes the
domain of private right there is a possibility of having to run
the risk of seeing said usurpaticm legitimized by a transfer to
a second lyerson, who, receiving it in good faith, might, after a
certain number of years ^ consider it as prescribed property ; fur-
thermore, the risk run by the nation of losing said ]>roperty is
only tof) evident, should it not be discovered in due time, and
in couseiiuence the necessity of stimulating discoverers with a
3574 INTERNATIONAL ARBITRATIONS.
beavy premium. Agaiu, such property m deponits of guano is
not euponed to mdividmd appropriation, for it is held as national
property, though it be unknown for years, and this fact de-
stroys the cause for the allowance of theone-third in question;
besides which there is not reason for holding out a premium
whereby the nation loses a great share of its own property, the
integrity of irhich is preserrcd under all cireumHtanceH, whilst
the use of the same is not imperative at present, for the sale
of guano is limited to the demand of the whole consumption,
and for this reason there are, as yet, deposits that have not
been worked.
*' * If by the above reasons we come to the conclusion that
the onc'third premium van not be applied in such an absolute
manner, it cannot, however, be denied that a just recompense is
due to the person who discovers property the intrinsic value of
which swells the wealth of the nation. Among the legal prin-
ciples that might with less ])ropriety be cited to cover the
present case, though not pointing to an exact analogy, is the
article 520 of the Civil Code, whereby the ])remium of 15 per
cent is allotted to any person who finds property not his own in
case of jettison or shipwreck. In this there is no usurpation,
a true owner exists, and yet there is a discovery, although the
cause that led to the placing of the property on the beach is
different to that of placing the unknow n deposits said to have
been discovered by Landreau.
" ' Now, then, if, notwithstanding the possibility of private
appropriation in the case of Jettison or shipwreck, the premiujn
does not exceed 15 ])er cent, how^ much less must it be when
the risk of sudi malappropriation does not exist.
'^ ' From these remarks the atJ^orney-general concludes that
the third part cannot be {/ranted to Landreau, nor even 15 per
cent; and the only manner of bringing the ])oint at issue to a
conclusion is to come to a private understanding fcith Landreau,
who, convinced by the above reasons, will, no doubt, enter into
a prudent arrangement, which will always prove beneficial to
him if the discovery is of the magnitude he describes, and for
the preservation of which he had used neither efforts nor
capital.'
''On the 24th of October the (lovernmeut of Peru took for-
mally into consideration the ai)plication of Landreau, repre-
sented at that time by Tomas Carlos Wright, and acknowledged,
as Attorney General IJretji had done, that it was just to give
Landreau a proportionate reward for his services, under certain
circumstances and conditions. And it issued the following
decree :
'''Lima, October 2i, 1865.
"'This petition having been examined by the council of min-
isters, and considering that the deposits of guano to be found
in the different h)calities of the territory of the republic con-
stitute the principal part of the national wealth, and that the
discovery of new beds will enhance the same, as well as the
CONTRACT CLAIMS. 3575
financial credit of the nation; that Jean Theophile Landreau,
represented to-day by Tomas Carlos Wright, says that there
are deposits of gnaiio entirely unknown, and otters to make the
same known to the government, demanding for this service a
proportionate recompense; that it is strictly just to accede to
said recompense in case the deposits are altogether new, in
accordance with the unanimous vote of the council and with
the report of the attorney generai of the supreme court; the
petition of the said Landreau is granted under the following
conditions:
"'1. Landreau, immediately after accepting this decree, and
a public contract of the same having been drawn up, will des-
ignate the deposits of which he calls himself discoverer, said
designation being made with the greatest possible minuteness,
it being well understood that no deposits known up to that
date shall be named in the same.
"'2. The premium accorded to the discoverer is 10 per cont
on the net proceeds of the guano discovered, if the number of
tons is one million or less; 8 per cent on the tons exceeding
one million and not reaching two millions; 6 per cent on the
tons exceeding two millions and not reaching three millions;
4 per cent on the excess of three millions and not reaching four
millions; 2 per cent on the excess of four millions of tons and
not reaching five, it being well understood that for any number
of tons above five millions there will be no recompense, the
excess belonging exclusively to the nation.
"'3. Neither Landreau nor any person or persons represent-
ing him shall ever agitate any (|uestion growing out of the
concession established in this decree before any other author-
ities or tribunals than those of the republic and in accordance
with the laws of the same, renouncing expressly all diplomatic
intervention, it being an ex])ressed condition that, should he
ever employ such means, that sole fact will destroy the effect
of this resolution, and he will be unable to claim nwy premium
tchatsoever.
"'4. The discoverer or his attorneys are forbidden, directly
or indirectly, to interfere in the contracts of sale or any other
contract that the Government may be pleased to make regarding
the guanos of the new deposits^ for his rights will be limited to
asking the share which, according to the percentage already
mentioned, may fall to him.
"*5. The government will begin operations on the new guano
de])osits as soon as it will deem it convenient, the discoverer or
his attorneys not having the option to demand when a start
shall be made.
*'*6. This concession will be void in case the government
or .any authority can i)lainly prove that they had official or any
private report of the deposits said to have been discovered by
Landreau.'
" Four days later, on the 28th of October 1865, a contract
was signed between the minister of Peru and Don Tomas
3576 INTERNATIONAL ARBITRATIONS.
Wright by which Landroaii ai'cepted the stipulations of the
forego in<^ decree.
*' A new decree from the governiaeut of Peru, dated Decem-
ber 12, 18()S, and signed by President Balta and Minister Cal-
deron, reads as follows:
"'The government, taking into considerjition that the said
contract can never be accepted on account of several defects
that render it null; that the premium stipulated to be accorded
to him is of such a great amount that it can never be given by
the government; that it is convenient to examine the gaano
deposits discovered, so as to see if the same be of good quality
and of any advantage to the national interests:
" * In virtue of these reasons it is hereby declared that the
contract signed between the government and Landreau, Nov.
2, 1865, is null and void; whil>t the discovering and the infor-
mation of the same made by him are accepted, and it is hereby
decreed that as a basis for a new contract said new guano de-
posits shall be examined by a special commission appointed for
that purpose.
" ' This commission is to proceed in company of the discov-
erer, Mr. Landreau, to the ditferent places indicated by him
and to measure the dei)osits of guano referred to in his declara-
tion, taking from each a sample in order to have the necessary
analysis mjide in view of testing the quality and value of the
same.
" * Let Landreau be made acquainted with this resolution
that he may name the recompense he asks for in the aforesaid
declaration.
(Signed) "'Balta.
"'Calderon.'
"The claimant has cited also in behalf of his alleged right
the following paragraph, taken from the VI Law, Book X.
Chapter XXI. of the Xew Summary (Xuei^a Recopilcunon) :
" ' No. 3, law (>, book 10, title 22 of the New Spanish Com-
pilation, still in force. Article 7. The case being terminated
the tribunals declare by a sentence that all jiroclaimed prop-
erty will be applied to the construction and preservation of
roads, and it will be distributed as follows: Two-thirds will
be applied to the above mentioned end, and the remaining third
to the discoverer. The same ai)i)li(ation shall be made with
unknown property. And if the thing discovered is less than
six thousand maravedis, tlie exi)enses will be deducted, and
the balance will be divided in three parts, as mentioned; then
the property will be sold at auction. As to vacjint or doubtful
property, the same procedure will be followed.'
" lias also invoked a decree of 1847 that reads as follows:
" ' Agreeably to the papers and tlie report of the superior
tribunal of accounts, and also that of the attorney- general of
the supreiue court, and considering that according to informa-
n received by the government it is probable that there is
CONTRACT CLAIMS. 3577
much manicipal and governuieut property which prodaces
nothing, bec^^use the state officers lack information and neces-
sary knowledge on that subject, it is hereby declared that the
revenue officers seek and discover said property in order to
form the matriculation books; for those discoveries being con-
sidered as declarations, the said functionaries, or anyone else,
will be allowed one third of the capital discovered, and interest
not discharged according to the 6th law, title 22, book 10 of the
new compiliation and decree of February 13, 1833. Let this
be circulated and published. Rubric of his excellency.
(Signed) " ' Rio, Minister of the Interior.^
"The agent of the government of Chile interposed a de-
murrer to the memorial of T. EUet Hodgskin, alleging that the
claimant has no title to claim from Chile, because he had no
real right to the guano of which he said that government had
taken possession.
" The commission before giving a decision has requested and
has taken into consideration the whole text of the decree of
13th of February 1833 and article 7 of the New Spanish Com-
pilation (Nueva Recopilacion), of which the preceding para-
graphs, cited by the claimant, are a part. The decree reads
as follows :
"^Republic of Peru,
"^Department of State and Foreign Affairs,
" 'Government House, lAma, 13th of February 1833.
" ^ Sir : His excellency the President of the republic has
approved the vote of the council of state, which I copy as fol-
lows:
" * The council, pursuant to the advice asked by the execu-
tive, through your excellency's ministry, in your note of the
loth of January last, as to whether he could carry into execu-
tion that part of the bill approved by Congress relating to the
nationalization of the property of suppressed convents, has
resolved, at its session of this date, as follows:
" ^ No law can be enforced which lias not been enacted pur-
suant to the provisions of the constitution. Nevertheless, in
the bill herein referred to there were only three almost unim-
portant j'>ections upon which the two chambers failed to agree.
It appears that the determining of priority of payment among
the creditors of the state i« a matter exclusively within the
purview of the judicial power, whenever a party appears
claiming the right of preference; Jtnd surely it was for this
reason that the chamber of deputies rejected said sections. If
the bill had passed through all its stages, and the executive
had agreed with the senate, where the rejected sections origi-
nated, and it were to be resubmitted for discussion by the
reviewing chamber, and the latter should remain inflexible,
would it not be reserved for the next legislature just as though
the objections should have agreed with the rejecting chamber?
The council before giving its approval should study all of thi
3578 INTERNATIONAL ARBITRATIONS.
and also what would become, during the session of the former,
or in the mean time, of the proi)erty of suppressed convents.
^^ ' Suppose that the (constitutional) convention meets this
year, and that no change is made in the division of the cham-
bers, owing to the benefits to be derived, as experience has
demonstrated, and as harmonixes with the well-nigh general
opinion of publicists, when will the first legislative congress
convene? Should no impediment intervene to cause delay
(and it is very unlikely that there will be none) it will be in
the year 1834; and if in said session the chamber should still
be infiexible, notwithstanding the objections of the executive,
it can not be introduced in the succeeding legislature, which,
should not the slightest imi)ediment arise, will meet in the
year 1835. And to what will the pro])erties be reduced during
all this time? To nothing: for the state has no funds to repair
the estates — which consist mostly of houses — and although
they should be well repaired, tliey would not then produce
anything under direct management, not even enough to pay
the employees, who, if they do not appr()i)riate their incomes,
would have to run the risk of the false returns of subaltern
hands, who will report tliem as unproductive, and almost
always empty or occupied by tenants unable to pay rent. So
that the administrative books, in lieu of correct accounts, wiU
' contain the record of payments preferred to the claims of
legitimate creditors; for the salaries of those engaged in the
management, far from diminishing, will increase in proportion
to the disorder in which the properties are, until by the very
nature of things they will become the mere semblance of what
they formerly were, and finally the state will have to satisfy
all the encumbrances resting on the estates, because it failed
to repair them in time and to make the opportune a])propria-
tions demanded by the conditions. If this could occur while
the chambers continue in the order established by the consti-
tution, what can be expe<ted if the convention should make a
complete change and leave the h^gislative ])ower indivisible
and vested in one body? Let it not be said that it can not do
this because of the inconveniences which would result from the
change when it has authority therefor. And in such an event
how would the bill under consideration fare i As if it had
never been introdui'cd. And the propei ty of sui)pressed con-
vents f It seems as if the bare sight of the c(mvents of San
lldefonso, Guadalupe, S. Pedro Nolasco, (luia, Belen, and
others mutely replies. And would they then be worth what
they formerly were t Would it not have been more beneficial
and Just had some of the nation's debts been paid with these
estates than, through an illy advised delicacy or false zeal, to
allow them to disappear ?
*^*If the estates in mortmain never increas<\ because of
which sales thereto are prohibited, ex])erience has proved that
such as are managed at the expense of the state are instantly
destroyed or anniliilated; and this alone could have sufficed to
CONTRACT CLAIMS. 3579
oblige congress to consider thein, order their nationalization,
and amortize the internal debt therewith. The national will
'is, therefore, manifest, since both chambers have agreed ; but,
even had no law been passed, woukl the preexisting laws
declaring the temporal hohlings of monastic orders national-
ized have been derogated! The only difference existing
between the properties now engaging the attention of the
coancil of state is that the council determined their proceeds
should be applied to works of charity. And was not the coun-
cil of state the executive power! Its authority, according to
its decree of organization, is it not the same as that vested in
the President of the republic! Who suppressed the convents!
The executive, in compliance with the law which provided
that none should exist where the designated number of monks
was lacking. Who has put them under direct management!
The same executive who has disposed of many of the proper-
ties, increasing revenues to colleges, and distributing the pro-
ceeds among other charitable objects. Will he be denied this
authority because he wishes to pay debts with such funds!
Even though the distribution formerly made be the most bene-
ficial, will it be said it is not just and holy to pay therewith
some i)ortion of what is owing t Is it not better to pay before
giving alms, even though the latter be one of the most com-
mendable virtues! The one thing the executive and Congress
can not do is to derogate the encumbrances resting on said
properties.
"'Had there been no bill, and under present circumstances
an advisory vote had been asked of the council of state for the
intended purpose, would it have been of opinion that it could
not dispose of them, even though it recognized the existing
necessity of diminishing the internal debt and the absolute
ruin to which they would be reduced because of the failure to
take the step? It seems not. And the national will that said
properties should be nationalized and with them the internal
debt be funded, \\ ill it hesitate a moment in giving its vote to
this end t
'^'Wherefore the judgment of the council of state is that
the executive be informed:
" ^First, The chambers having declared the property o^ con-
vents suppreased an<l those that may hereafter be suppreffsed as
national, save encumbrances resting thereon and the appli-
cations already made.
" 'Second. That the amortization be made at public sale after
appraisement and adcertisemnitjor a period of thirty days to the
highest bidder^ whose bid shall in no case be less than the full
amount of the appraisement, and who shall pay the purchase
price by i)ersonal or endorsed draft.
" ^Third, That, in order to l)ring to the notice of all the in-
habitants of the republic which are all the properties to be
auctioned, he (the execntive) shall cause to be made in each
department a list of the estates therein situate which may not
3580 INTERNATIONAL ARBITRATIONS.
have been previously applied, giving the respective valnation
of ea<'>h, arrived at by experts to be appointed by the finance
l>oard.
** ^Fourth. That these lists be published in the newspapers of
each department; that, in order to reach the notice ot all, those
published in the newspapers of one department shall be repab-
lished in those of the others.
^' ^ Fifth. That four months after the publication of the lists
the auctions of the estates shall take place at the capital of the
department in which they are situated, and before the t)nardof
auctions, in tiie form prescribed by law.
" 'Sid'th. That whoever, after a year from the pablication of
the lists, shall discover property of suppressed convents, or other
properties belonjrin^ to tiie state by any title, shall receive a
third part thereof; an<l those who, after the year, are con vict-ed
of coiirealinff them shall be pxintHhed in double the value thereof^
should they have property,
" ^tSereuth, And that contracts of rent or emphyteutic sales
shall continue in force until the expiration of the term stipu-
hited in the respective instruments, and (the proceeds thereof)
shall be applied, in the manner indicated, to tiie payment of
the internal debt, exce])ting such as concern the (convent of)
liuenamurrte, and the sites of the <*onvents the state may need,
in whole or in part, for courts, othces, educational institutions,
and charity.
'* '1 transcribe it to your excellen<*y in compliance with the
resolution, subscribing myself your attentive and humble
servant,
'* MosK MariI Corbacho,
" 'Honorable MiniHter of State in the
'' ' Department of Oocernment and Foreign Relations.
'* *And the n(»(;essary provisions for its enforcement having
to be issued by Your l^^xcellency, I have the honor to transcribe
it to you, announcing? that I sliall opportunely transmit to Your
Kxcellency a statement of the real estate and rights of the sup-
pressed convents which hare been nationalized for the purposes
set forth in the preceding rote,
" ' I renew to Your Kxcellency the assurances of the distin-
guished regard with which I am, your attentive and obedient
servant,
'' MosE MakiX. Pando.'
[IJ (Cole, vol.4. No. 15).
'^Article 7 of thc^ VI. law. Book X. Title XXII. of the new
Spanish compilation [Xuera Recopilacion), says as follows:
''^Article 7. Whenever any persyii shall die without mak-
ing a will, and shall leave no known relatives within the
fourth degree, the ordinary constable or constables of the sub-
deU^gation, or any other person to whom notice shall come, shall
make the (leclaration before the subdele<iate judges, and they
shall take testimony as to how the deceased died without
CONTRACT CLAIMS. 3581
making a will and leaving no relatives within the fourth degree,
and said testimony once taken the judges shall cause tliree
edicts to be posted and proclaimed, setting forth therein the
fact that John Doe is dead and left no will ; that if anyone has
the right of succession ex tcstamento rel ah intetttato^ he shall
appear before them within thirty days, or any other term suit-
able to the judges, provided it be not less than thirty days, and
that if within such term any heirs shall appear and show their
right, they shall be heard and their rights recognized, other-
wise the property will be applied to the construction and main-
tenance of roads (5 and 0) ; and if within the three terms of the
said edicts heirs shall appear, they shall aver the property
restored to them, as provided in said edict; and, if said terms
having expired, no heirs appear, the cause will be tried on
proofs, notil'ying the halls of justice, and the witnesses of the
preliminary proceedings will be reexamined and the case
closed, and once closed they shall decree the said property to
be set apart for the construction and maintenance of roads,
and it shall be so applied in this way : Two- thirds thereof to go
to the said object for which it is iiitended, and a third part to
the declarer, cost of suit, and subdelegate, ministers, and
judges for their work, and a like application shall be made in
case9 of property of unknown owners; and if the suit shall be
of six thousand maravedis down, the costs shall be subtracted
from the whole amount, and the remainder shall be divided
into three parts, as provided, and the application made, the
property will be sold at public sale in due form of law, adjudg-
ing it to the highest bidder.'
"The commission, having examined the documents produced
by the party claimant, and those of which it could take judicial
notice, has reached the conclusions following:
^' First. That the decree of the 13th of February 1833, on
which it is attempted to vest in Tbeophile Landreau 2ljuh in re
in one-third of the guano by him discovered, is not applicable
to the present case for the reasons following:
*«a. That the sections of the said decree and the dominating
spirit thereof clearly show that it refers solely to the ])roi)erty
of convents which a Peruvian law had just provided should
be transferred to the state. In fact, the preamble to said
decree is in these words:
"'The council, x)ursuant to the advice asked by the execu-
tive through your excellency's ministry, in your note of the
15th of January last, as to whether he could carry into execu-
tion that part of the bill approved by Congress relating to the
nationalization of the property of suppressed convents, has re-
solved, at its session of this date, as follows:
"*The council, after adducing several reasons tending to
demonstrate the injuries the state would sufi'er should the
executi(m of the said law be deferred, owing to the ruinous
condition of the convents of San Ildefonso, (luadalupe, 8an
Pedro Nolasco, Guia, Belen, and others, resolved to submit to
3582 INTERNATIONAL ARBITRATIONS.
the executive, among other ebnclusioiis, the two following:
*'l8t. The Congress having declared the property of convents
Huppresned and those that may hereafter be suppressed a« national^
save the incumbrances resting thereon and the appropriatioDS
already made. 2d. That they be sold at public sale, after
ap|>raisement and advertisement for the period of thirty days,
to the highest bidder, whose bid shall in no case be less than
the full am(mnt of the appraisement, and who shall pay the
purchase price by ])ersonal or endorsed draft.'
''It is to be noted that in no part of said decree is mention
made of, nor is there any allusion whatever to, discoveries of
guano; and that if the (iovernment of Peru had considered
that it had any reference to deposits of guano it would have
alienated them at public sale, in accordance with the provisions
of the said decree, thirty days after their existence should
have been made to Landreau— which was not done then nor
afterwards, as is proven by the fact that they were occupied
by Chile twenty years later.
" b. The foregoing argument is supported by the fact that
(as appears from the exhibits of the claimant) Theophile Lan-
dreau never invoked, in support of his rights and expectations,
the decree referred to; for in the communication which, on the
aoth of December 1859, he addressed to the Government of
Peru, informing it of certain discoveries of guano he had made,
he limits himself to the statement that he would reveal the
locality where such dei)osits existed, and would produce a
sample of the guano so soon as the government would advise
him as to what his recomptnHv iconldbe,
"c. The director-general of the treasury of Peru, of whom
the government re(| nested a report touching Landreau's peti-
tion, exi)ressed the opinion that there was no law applicable
thereto.
'W/. Although the attorney-general of Peru, Senor Villar^in,
whose opinion was also consulted on the 18th of January
18C0, gave it as his view that the government might assign to
Landreau, under certain circumstances, a tliini of the value of
the guano by him discovered, in accordance with the decree of
the 3d of February 1853; said opinion was lat^r on, October
31, 1803, counteracted by the attorney general, Senor Ureta,
who held that the sai<l decree was not api)licable to the peti-
tion of Landreau because the reward therein otl'ered referred
only to the declaring of national proi)erty illegally held; for,
as this might pass into private hands, it was feared that the
holders in good faith might set up prescription, after the lapse
of a certain number of years, and thus oust the state of its
rights. Confronted by the fear of losing such property, the
government thought it well to stimulate investigations and
individnal interest by offering to the <leclarers of such proper-
ties a third of the value thereof, — (•ircumstances which could
not attach to cases of guano discoveries, which in no way
could become private property through simple possessory title.
CONTRACT CLAIMS. 3583
•
^^e. Whatever the opiuioiis of the attorneys- general of Peru,
Seiiores Villanin aud Ureta, may have been, neither of them
involves, according to the laws of Peru, a binding ])recedent,
nor has it any legal force unless such opinion, which is merely
explanatory, obtains the effective approval of the government.
"/. The Government of Peru disregarded the opinion of the
Attorney- General Senor Vilhiran and followed that of the
Attorney-General Senor Ureta, as appears from the decree of
the 24th of October 18(>5, which occasioned the petition of
Landreau under the conditions therein set forth.
"^. Landreau, upon accepting and subscribing the contract
of October 28, 1865, with the Government of Peru, by this very
fact accepted also the opinion of the attorney-general, Senor
Ureta, which served as the basis of the decree of the 24th of
October of the same year, and according to which the resolu-
tion of the council of state of the 13th of February 1833, did
not apply to the discoveries of guano made by Landreau.
^^ Second. That the seventh paragraph of Law VI. Title
XX If. Book X. of the Kuera Recopilacion is also inapplicable
to this claim, for the reason that this law refers solely to prop-
erty left by persons dying intestate and without heirs within
the fourth degree, and to certain property having no known
owner, res nuUiuH,
''^ Third. That the decree of 1847 was only a regulation, hav-
ing for object the registration of all the pro])erties referred to
in the decree of 1833 and in the law in the Neuva Recopilacion^
before cited.
''Fourth. That by decree of the 12th of December 1868,
the Government of Peru had declared invalid the contract of
October 28, 1865, promising to later on give Landreau a mod-
erate compensation for his services as discoverer.
''Fifth. That the legal standing of Landreau has been the
same as that of any other claimant, having, according to con-
ventional agreement, a personal claim against Peru.
"Sixth. That Chile took possession of the guano dex)Osits
existing in the territory of Peru in the year 1881, both repub-
lics being in a state of war.
"Seventh, That Theophile Landn^au lacking all jus in re
recognized by the Government of Peru, in the aforesaid guano
deposits, and said deposits being at that time under the abso-
lute control and ])Ossession of said government, that of Chile
could legitimately take possession thereof as property of the
enemy, in accordance with the laws of war. That Peru has
ceded to Chile the territory mentioned in articles 2 and 3
of tlie treaty of ])eace of October 20, 1883, witiiout other amis
than those provided for in articles 4 to 10 of the said treaty
of peace.
"Eighth. That (to leave nothing unsaid) Chile having agreed
in the aforesaid treaty of ])ea(e with Peru, to deposit in the
Bank of England 50 per cent of the product of guano alreac^y
collected or which niiglit hiter on be collected, to be applied to
#
3584 INTERNATIONAL ARBITRATIONS.
•
the payment of debts due by Peru aud secured by said guano,
subject to the award to be miide by an arbitrator to be named
by the iuterested parties, and in default thereof by the Gov-
ernment of Chile; and the federal court of Switzerland having
been named for tliis purpose in 1893, as is notorious, Landrean,
if he considered lie had a jvs in re in said guano, could have
taken advantage of the medium thus offered him to secure the
full recognition of his alleged rights.
''That, besides the 50 per cent already referred to, Chile, to
help Peru to the liquidation of her debt secured by the deposits
of guano, ceded spontaneously to the latter and made a formal
delivery on the 5th of December, 1802, of 80 per cent of the
50 per cent that by the treaty of peace had been reserved for
herself since the 12th of February, 1882, as appears from
the ])rotocols subscribed between the minister of foreign rela-
tions of Chile and the diplomatic representative of Peru in San-
tiago on the 8th of January 1890 and of the 5th of December
1892 (Report of Foreign Relations, 1892, pages 50 and 156).
''That on the 2'M of July 1892, a i)rotocol, signed by the
minister of foreign relations of Chile aud the diplomatic rep-
resentative of France in Santiago, Chile, also made a sponta-
neous cession of the reinaing 20 per cent in favor of said French
creditors whose titles should obtain a favorable decision from
the federal court of Switzerland. Therefore Chile, by the
transactions referred to, has returned in favor of Peru and of
her creditors claiming a right to the guanos, all proceeds that
had resulted from the sale of that article. (See Report of »For-
elgn Relations, 1892, page 121.)
*'That in conformity with the said protocol of December 5,
1892, the Government of Chile delivered to the Government of
Peru on that date and for a i)eriod of eight years thereafter
the guano beds that existed in the territory transferred to
Chile by the treaty of peace, in order that they might be ex-
ploited and their proceeds used in the payment of the Peru-
vian debt guaranteed by that article. (See Report of Foreign
Relations of Chile, 1^92, page l^iO,)
*' Finally, that the rights of T. Ellet Ilodgskin being derived
from those of Jean Theophile Landreau, all the foregoing con-
siderations apply.
'*ln virtue of the foregoing statements the commission is of
0])inion that the present claim against the (iovernment of
Chile, under whatever as])ect it may be considered, is inadmis-
sible, and therefore decides that the demurrer filed by the
honorable agent for the Republic of (/hile is sustained, and the
claim of T. Ellet Ilodgskin is disallowed/'
In the case of Landreau (No. 38) the opinion of the commis-
sion was as follows :
^Mohn C. Landreau, in his memorial, numbered 38, substan-
tially says :
**That he is a naturalized citizen of the United States and
CONTRACT CLAIMS. 3585
the legitimate owner of one undivided tenth part of certain
gaano deposits situated in the liepublic of Peru.
''That he derives title to said property from a transaction
made by public instrument (eitcritura publica) on the 21)th of
October 1875 with his brother, J. Theophile Landreau, a French
citizen, in which it was agreed that the claimant should have
an interest of 30 per cent in the guano acquired by J. Theophile
Landreau, and the latter was to retain the remaining 70 per
cent.
"That the rights of Theophile Landreau grew out of certain
discoveries of guano deposits made by him between the years
1844 and 1859, and which he reported to the Government of
Peru in 1865.
'* That by reason of said discoveries the said Jean Theophile
Landreau became entitled, and had a right under the laws of
Peru then in force, to one-third of the property discovered, as
provided in § 6 of the resolution of the council of state (of
Peru) of the 13th of February 1833, and contained in volume
4 of the Collection of Laws by Quiroz.
" The memorialist further states that on the 28th of October
1865 the said J. Theophile Landreau, representing both his
interests and that of the claimant, and with the consent and
acceptance of the latter, by way of compromise and with the
view of facilitating the settlement of their interests, entered
into a contract with the Government of Peru, by which they
were to receive in compensation of their rights to one-third of
the guano deposits discovered by J. Theophile Landreau a cer-
tain proportion of five million tons of guano to be removed
f-om said deposits, and the claimant refers to said contract
and annexes a copy of it, marked *' Exhibit 6."
'*That Peru refused, however, to carry out said contract, and
formally repudiated and attempted to annul it by decree of the
12th of December 1868, whereby the memorialist and J. Theo-
phile Landreau were restored to their original rights as they
existed prior to the said 28th day of October 1865; that the
Government of Chile, knowing well the places, titles, and
rights so owned by the memorialist and J. Theophile Lan-
dreau, forcibly took possession, in 1881, of the said guano
deposits, and has held them in its exclusive possession until
the present time and has worked them, having extracted, ac-
cording to the information received by the claimant, more
than three million tons of guano, upon the selling price of
which there would correspond to him a sum exceeding five
million dollars, American gold, which sum the memorialist
claims should be i)aid him by Chile plus an interest of 6 per
cent from the 1st of January 18S2.
"The agent for the Republic of Chile has filed a demurrer to
this claim, alleging that »Iolin Theophile Landreau, not having
had anyjuH in re to said deposits of guano, can not claim from
the Government of Chile.
*'The commission has examined this claim, which, by its
3586 INTERNATIONAL ARBITRATIONS.
origin, nature, and judicial character, is analogous to the one
of T. Ellet liodgskin, No. 39, and decides that the same con-
siderations adduced in said case are in general applicable to
the present one.
^* Therefore the commission decides that the demurrer inter-
posed by tlie agent of Chile is sustainevd and that the claim of
John G. Landreau is dismissed.'"
Mr. (joode, the United States commissiouer^
enting pinion. (|^|iy^p(»(i l\^^^ following dissenting opinion:
''In these two caseH the samo (iiicHtions, siibstautiaUy; are presented by
the deuinrnT of the defendant. As a matter of convenieuoe, I will con-
sider the latter ciise.
*'The following facts appear from the memorial:
''1. That the claimant is a native-born citizen of the United States and
is the legal and equitable owner by assignment of all the right, title, and
interest in and to the claim of J. Thcophile Landreau against the Govern-
ments of Pern and Chile; that the justice and validity of said claim have
been inquired into by the (Government of Peru repeatedlj' and admitted
to be just and valid.
*'2. That a public decree and proclamation of the Government of Peru,
as shown in 'Exhibit No. 1/ accompanying the memorial, is the basis of
this controversy ; that, confiding in said decree and proclamation and in
the public faith of said government as therein pledged, said J. Theophile
Landn'au devoted years of labor, toil, and i>rivation in prospecting for
deposits of guano and other heretofore hidden and unknown natural
resources of the lands of Peru, and expended large sums of money in and
about the search for the same.
*'3. That by the then existing laws of Peru and the expressed terms of
the aforesaid decree said Landreau was entitled to receive either one-third
of all th(^ mineral or other natural resources discovered by him, or one-
third of their value.
*^4. That said J. Theo])hile Landreau was very successful in his labors
as aforesaid, owing to his discoveries of large dt'posits of guano of the
value of many millions of dollars, until then wholly unknown, and the
value of the lands of Peru was very greatly increased.
''5. That the (fovrrnment of Peru obtained every benefit of the dis-
coveries made by said J. 'J'heophile Landreau as aforesaid.
'The connnission subsequently amended its order in the two cases, as
follows :
'*The honorable agent (dthe United States having submitted a motion
to amend the judgments of the commission in cases Nos. 39, T. Kllet Hodg-
skin r. The KN*public of Chile and 38, Jolni C. Lan«lreau r. The Republic
of Chile, by the addition of the words •without i)r«\judice,^ we decide that
tin* said judgments be amended to rea«l as follows;
''No. 39. That th«' demurrer tilrd by the honorable agent of Chile is sus-
tained, and the claim of T. Ellet llodgskm against the Republic of Chileis
disallowed.
" No. 3H. That the demurrer interi)osed by the agent of Chile is sus-
tained, and that the claim of John C. Landreau against the liepublic of
Chile is dismissed."
CONTRACT CLAIMS. 3587
"6. That neither said J. Theophile Landreau nor his successors and rep-
resentatives, nor the claimants, have ever received any compensation of
any kind at any time from the Government of Pern, notwithstanding the
resalt of said discoveries was to restore, extend, and sustain the credit of
Peru in the financial markets of the world.
** 7. That said claim has never been paid or satisfied in whole or in part
by the said Government of Peru. Successive administrations of said
government have declared that under the law, as set forth in 'Exhibit
No. 1/ under which this claim is made, to make any just compensation
to Landreau for his services it must of necessity be so great as to exceed
the ability of said government to pay the same.
''8. That upon such report by its own officials said government entered
into negotiations with said Landreau for th« reduction of his claim to an
amount within the power of said government to pay.
'^9. That said Landreau, moved by said reasoning, offered to waive the
strict legal rights to which he was entitled under the said law and the
aforesaid decree, and to accept a smaller compensation than he was other-
wise entitled to claim. Whereupon said government, on or about the 24th
day of October, 1865, submitted to the said Landreau a basis of settle-
ment, which was thereafter duly accepted by the said Landreau.
** 10. That, notwithstanding its promises and agreements as aforesaid,
said government thereafter neglected to carry out the settlement which
it had submitted to said Landreau, and wholly disregarded the same and
every part thereof, in violation and neglect of right and justice, and of
its solenm agreements and covenants as aforesaid.
** 11. That the Government of Peru, for the payment of a war indem-
nity, conveyed certain territories in which were located the deposits of
guano aforesaid, to the Government of Chile, and the Government of
Chile thereupon took aud has over since retained possession of the islands
and mainland upon which said deposits of guano discovered by the said
J. Theophile Landreau were situated.
'^ 12. That at the time of the commission of the grievances in the memo-
rial mentioned the claimant, individually and as such trustee, had a just
and legal claim in and upon said deposits of guano and each of them, on
account of the said claim against the Republic of Peru, to the full extent
thereof, and that such claim was a valid and subsisting lien upon said
deposits of guano and each of them at the time at which the Republic
of Chile entered upon, seized, removed, and sold such deposits of guano
and each of them, and converted the proceeds thereof to her own use;
that such lien has ever since existed and now exists in favor of the claim-
ant either against such deposits of guano or the proceeds thereof.
^' 13. That the Government of Chile was duly notified by the claimant's
grantors before taking possession of said deposits of guano, both through
the Secretary of State of the United States and by means of duly authen-
ticated written documents on file in the government offices at Lima,
Peru, that claimant's grantors had a valid legal claim upon the said deposits
of guano, as owners of the claim of the said .1. Theophile Landreau, and
that he and his assigns would hold the said Government of Chile respon-
sible for the share claimed by Landreau of any guano forming part of
the deposits of the guano aforesaid which might be taken away and
removed.
'' 14. That the Chilean Government, in disregard of such notices and in
5627— VOL. 4 23
3588 INTERNATIONAL ARBITRATIONS.
yiolation of the rights of claimant and hiH grantors, took and removed
large quantities of such gaano, of the value of more than ten million
dollars, and, as the claimant is informed and believes, sold the same and
converted the proceeds of the sale to its own use and benefit, and has
neither paid nor ofi'ered to pay the claimant or his grantors any sum what-
ever on account thereof.
"15. That by reason of the premises the claimant is justly entitled to
have and receive f^om the said Government of Chile at least one-third of
the value of all guano taken and removed by its orders and permiasion
firom the deposits of guano on said islands and the said mainland of Pern,
discovered by the said Landreau.
" 16. That claimant is not in a position to state with greater certainty
the exact amount of guano taken and removed by the said Government of
Chile as aforesaid, but is informed, and believes and thereupon avers, that
the amount thereof exceeds in value $10,000,000.
''The remaining paragraphs of the memorial set forth the different steps
that have been taken to confer title upon the claimant individually and
as trustee.
"I am of opinion that the facts as stated in the memorial, and as
admitted by the demurrer, are sufficient under the treaty and in law to
entitle the claimant to maintain his claim. What was the contract
between J. Theophile Landreau and the Government of Peru upon which
this claim is based, and out of which this controversy has arisen f We find
in 'Exhibit No. 1,' accompanying the memorial as a part thereof, the fol-
lowing decree and proclamation, taken from the compilation of Quiroz,
vol. 4, p. 266:
[Here follows paragraph 6 of the decree.]
"The supreme decree of 1847, signed by Rio, minister of the interior,
is as follows :
[Here follows the decree, above quoted.]
"The report of Attorney-General Villar^n, dated January 18, 1860, reads
as follows :
" ' The attorney-general in of the same opinion as the director-general
of France as to the fact of verifying whether the deposits of graano
declared by Jenn Theophile Landreau have or not been known up to this
day; it is therefore necessary to make such a Hearch, and in consequence
this office is of the opinion that if, after having made the verification by
means of the certificates and reports of the State Department, it should
happen that the said deposits are unknown, your excellency will then be
able to accept the derlarations of Landreau, and notify him, as a reward,
of the allowance of a third part of the guano discovered, conformably to
the sixth paragraph of the decision of the council of state of Febmary
13, 1833, vol. 4 of the Collection of Laws by Qniroz, and which, besides,
is the general law applicable to this matter. Your excellency can there-
fore order a suitable verification to be made, and decide according to the
contents of this report, or as your excellency will deem advisable.'
" It thus appears that by the express terms of the decree of 1833, based
on the laws of Pern as interpreted by her attorney-general, Landreau was
entitled to one-third of the guano deposits discovered by him. No oon-
tract can be of higher dignity or more binding in form than that which
CONTEACT CLAIMS. 3589
exists under the supreme decree of a government based upon the laws of
that government. The effect of the contract was to vest in J. Theophile
Landreau an equitable title to one-third of the guano deposits discovered
by him, which became a legal title when those discoveries were reported
to and accepted by the government of Peru. He was to all intents and
purposes the legal owner of one-third of the guano deposits in question.
He was joint owner with Peru of this valuable property. His title io the
one-third of the guano deposits discovered by him was as clear and indis-
putable as that of Peru to the remaining two-thirds, as soon as those dis-
coveries were reported and accepted. Under these circumstances, Peru,
being pressed by financial difficulties and sorely in need of money to sus-
tain her waning credit, made to Landreau a proposition of compromise,
thereby recognizing the justice and validity of his claim. The offer of
compromise was accepted by Landreau, and the result was the formal
contract of October 28, 1865, under which he was to receive a certain per-
centage of the net proceeds of the guano deposits discovered by him.
That contract reads as follows:
" ' Lima, £8th October, 1865.
** * The administrator signing at the foot in the name and as representa-
ive of the state, making use of the authority vested in him for this
purpose, aflirms by these presents that this concession guarantees Jean
Theophile Landreau the terms named in the six conditions mentioned in
the supreme decree of 24th of October, 1865, which said statement forms
the true essence of this instrument, against which at no future time can
there be any reclamation, in any manner whatsoever, unless the grantee
or his attorney should not, either wholly or in part, comply with the
supreme resolution approving the discovery made of the guano belonging
to the nation, and if such jbe the case, the compliance with the stipulations
of the sixth article of the supreme resolution aforesaid will be faithfully
carried out, and if Landreau or his attorneys do faithfully fulfil every act
demanded of him, the same faithfulness will be used towards him in
carrying out the six principal conditions forming the basis of this contract.
" * Jos6 Felix GarcLl.
" ' ToMAS Caklos Wright.'
** If Pern had complied with this new contract and kept the faith thus
solemnly jilighted, this controversy would not have arisen, and this com-
mission would not have been invoked to decide this claim according to
' public justice, law and equity.' It appears, however, that on December
12, 1868| at Lima, another decree was proclaimed by the ministry of com-
merce and finance, setting forth that the premium stipulated to be
accorded to Landreau is of such a great amount that it can never be given
by the government, and declaring that the contract signed between the
government and Landreau is null and void, whilst the discovering of the
deposits and the information of the same made by him were accepted,
" Notwithstanding the solemn declaration, embodied in a law of the
Peruvian Congress, that * the Executive will faithfully fulfil iu all their
parts the contracts made with parties, whether they be national citizens
or foreigners, whatever be the time and government under which they
have been made' Peru finds it convenient to declare the contract of October
1866 null and void. While accepting its benefits on her part, she deliber-
3590 INTERNATIONAL ARBITRATION&
atoly repndiatos it ho far as Landreaa in concerned. What are the legal
coDAetfinenoes pf each a brea^'h of faith and snch a violation of the new
contract? I am of the opinion that the legal effect is to remit the parties
to their original status and to restore to Landreaa his right to olaim one-
third of the guano deposits discovered by him, or one-third of their value
if they have Insen converted and sold. It is a well-settled principle that
when one party fails to perform his part of the contract, the other party
may treat the contract as rescinded. If it be true that Landreaa was the
legal owner of one-third of the guano deposits discovered by him and
that the Government of Peru in payment of a war indemnity has con-
veyed to the Republic of Chile the territory in which the said deposits
are located, and Chile now holds possession of said territory, it follows that
Chile is responsible for such deposits, or for their value if they have been
converte<l aud sold by her. Peru had no right to convey, and Chile had
no right to receive, property that belonged to Landreau. When Pern
conveyed the territory on which the guano deposits were located, Chile
took it cum onere. She took it subject to all existing liens and inoam-
brances ; she took such title to the guano as Peru had, and Pern had title
only to two-thirds thereof. It is the very nature and essence of a lien
that no matter into whose hands the property goes it passes cum anere.
The lien of Landreau still exists and remains inseparably attached to the
deposits of gnano or to the proceeds of their sale.
''It appears that the Government of Chile was duly notified, before
taking possession of said deposits of guano, that claimant's grantors had
a valid legal claim upon the same, and that she would be held responsi-
ble for such deposits as might be taken away and removed.
'' As to the Hccond ground of the demurrer, that there was neither con-
tract nor privity of contract between the Republic of Peru and these
claimants, I deem it sufficient to say that, as I understand their olaim,
they do not base it upon any contra<^t with Peru. They claim one- third
of the guano de[>osits in queHtiou as assignees for valuable consideration
iVom J. Theophih^ Landreau, who derived his title from Peru. The trans-
action 1>etweeu these individuals was one in which Peru had no conoem.
J. Theophile Landreau had the right to sell, and claimants had the right
to purchase, this property without the consent of Peru. Any estate or
interest in land is assignable. If J. Theophile Landreau was the legal
owner, ho hud the absolute right to dispone of the property in whole or
in part. The m<'nioriali8ts aver * that in or about the year 1881 ChUe,
well knowing the prenuses and the right and title so held by them afore-
said, took possession of all the said guano deposits so discovered by
J. Theophile Landreau and reported to the Peruvian Government, and has
ftom thence until the present time ht^ld exclusive possession thereof, and
has worked, or caused the same to be worked, and has removed fh>m said
deposits large quantities of guauo/
" In view of all the facts as stated in the memorial, I am of the opinion
that Peru was rosponsiblo to the claimants for one-third of the gnano
deposits discovered by .1. Theophile Landreau before the cession of that
X)art of her territory on which the said deposits were located, and that
Chile became responsible by the acquisition of the said territory and the
approi)riation t4) her own use of the said property.
"The demurrer should be overruled and the defendant required to
answer.''
CHAPTER LXIV.
BOND CASES.
On the 24tli of October 1838, a contract was
TezM Bond Cmm. entered into between James Holford, of Lon-
don, and Messrs. Williams and Bnrnley, com-
missioners of Texas, who were authorized to negotiate a loan
under the provisions of an act of the congress of Texas of May
16, 1838. By this contract Holford was to purchase for the
Bepublic of Texas a steamer, then lying at Philadelphia, and
provision and deliver her at Galveston, in Texas. This Holford
did, and the contract was afterward approved by an act of
the oongn^ess of Texas of January 10, 1839, and bonds were
issued to Holford, dated July 1, 1839, for the payment of which
the faith and revenues of the republic were solemnly pledged
by acts of its congress of November 18, 1836, and May 16,
1838. Provision was also made by an act of January 22, 1839,
that a certain portion of the sales of the public lands should
be annually reserved, as a permanent and sinking fund for the
payment of this debt, until the whole should be paid.
It was alleged that payment had not been made of either
principal or interest on these bonds.
In 1845 Texas was admitted into the Union as one of the
United States.
By the Constitution of the United States the general gov-
ernment has power " to regulate commerce,^' and " to lay and
collect taxes, duties, imposts and excises;" and the several
States are forbidden to <^ enter into any treaty, alliance, or
confederation," or, " without the consent of the Congress," to
" lay any imposts or duties on imports or exports, except what
may be absolutely necessary for executing its inspection
laws." *
According to the terms agreed upon between the United
States and the Kepublic of Texas, whereby the latter became
' Art. I. sees. 8, 10.
3591
3592 INTERNATIONAL ARBITRATIONS.
one of the United States of America^ the vacant and unappro-
priated lands within its limits were to be retained by the State
and << applied to the payment of the debts and liabilitiea of the
Bepublic of Texas ; and the residue of the lands, after discharg-
ing the debts and liabilities, were to be disposed of as the State
might direct, but in no event were said debts and liabilities to
become a charge upon the Government of the United States." *
Subsequently, in modifying the boundary of Texas, the
United States, in 1850, on condition of the cession by Texas of
certain large tracts of land to the United States, agreed to pay
Texas $10,000,000, but stipulated that '< five millions of the same
should remain unpaid until tlie creditors of the State holding
bonds and other certificates of stock of Texas, for which duties
on inii)orts were specially pledged, should first file at the
Treasury of the United Stutes releases of all claims against
the United States for or on account of such bonds or certifi-
cates, in the form prescribed by the Secretary of the Treasury
and approved by the President of the United States/'
Up to 1854, when a claim against the United States for the
payment of Holford's bonds was presented to the mixed com-
mission organized under the convention between the United
States and Great Britain of February 8, 1853, difficulties be-
tween the United States and Texas as to the manner of appro-
priating the sum in question had prevented its payment to
Texas, and new measun^s in regard to it were then pending
before Congress. The British Government had never treated
any of the claims of the holders of Texas bonds as a subject
of interposition with the United States.
Thomas, the agent of the United States, protested against
the commission's entertaining Ilolford's claim on the following
grounds :
<' I. Because it is in no proper sense a claim on the Govern-
ment of the United States, embraced or contemplated by the
convention of February 8, 1853, for the settlement of outstand-
ing claims.
^^ II. Because the second of the resolutions for the admission
of the Kepublic of Texas into the Union as a State, among
other things, declares that ^ in no event are the debts and lia-
bilities of Texas to become a charge upon the Government of
the United States.'
" III. Because the people of the said Republic of Texas, by
' Stats, at Ti. v. 798.
BOND CASES. 3593
depaties in convention assembled, with the consent of the
existing government and by their authority, did ordain and
declare that they assented to and accepted the proposals, con-
ditions, and guaranties contained in the resolutions above re-
ferred to, and thereupon she was admitted into the Union as a
State.
^' lY. Because it is not true, as is asserted in the statement
of the claim presented to the commissioners, that Texas is
incorporated into and subjected to the dominion of the United
States Government so as to destroy her responsibility for debts
contracted while an independent republic, or her ability to
meet them; but, on the contrary, she is for the purpose of ful-
filling these obligations as clearly responsible for their payment
by the law of nations, by her separate and distinct organiza-
tion, and by her solemn agreement with the United States as
she ever was, and is fully able to discharge them ; and this
commission is not authorized to interfere to shift any such ob-
ligation from Texas upon the United States.
<< Y. Because this commission has nothing to do with any
law or act of the United States addressed to the government
or people of Texas, designed or tending to induce that State
to x)erform her obligations entered into while an independent
republic; and hence, to take jurisdiction of this claim would
be a palpable and unwarrantable violation of the spirit and
intention of the convention establishing this commission, to
which the United States would have a perfect right to take
exception, as much as if this commission were to pass laws for
the government of the United States or do any other thing
wholly without the limits of its authority.''
The case was argued at length in reply to the protest of Mr.
Thomas, as well as on the merits, by Mr. Hannen, British agent,
and Mr. Cairns. On the application of one of the claimants it
was. reargued before the commissioners and the umpire, by
Messrs. Eeverdy Johnson and Hannen for the claim and Mr.
Thomas against it. The arguments of counsel, and the opin-
ions of the commissioners, who differed as to the liability of
the United States for the payment of the bonds, covered a
wide range. In the printed report of the proceedings of the
commission the umpire's opinion is not given, but it is stated
that he dismissed the claim on the ground '^ that cases of this
description were not included among the unsettled claims that
had received the cognizance of the governments or were de-
signed to be embraced within the provisions of the convention,
and were, therefore, not within the jurisdiction of the commis-
sion." Whatever may have been the meaning intended to be
conveyed by this vague statement as to what the umpire held,
3594 INTERNATIONAL ARBITRATIONS.
the language is misleading. The umpire's awards on the Texas
bond claims are on file and are textually as follows:
" London, J29th November 1654.
*< The umpire appointed agreeably to the provisions of the
convention entered into between Great Britain and the United
States on the 8th of February 1 853, for the adjustment of claims
by a mixed commission, having been duly notified by the com-
missioners under the said convention that they had been un-
able to agree upon the decision to be given with reference to
the claims of the heirs of James Holford against the Unit^
States in relation to Texan bonds; and having carefully ex-
amined and considered the papers and evidence produced on
the hearing of the said claim, and having conferred with the
said commissioners thereon, hereby rei)orts that this commis-
sion can not entertain the claim, it being for transactions with
the Independent Bepublic of Texas prior to its admission as a
State of the United States.
"Joshua Bates.
" Umpire.^
" London, J29th November 1854.
" The umpire appointed agreeably to the provisions of the
convention entered into between Great Britain and the United
States on the 8th of February 1853, for the adjustment of claims
by a mixed commission, having been duly notified by the com-
missioners under the said convention that they had been un-
able to agree upon the decision to be given with reference to
the claim of Messrs. Dawson, of Baltimore in the United States,
relating to Texan bonds against the Government; and having
carefully examined and considered tlie papers and evidence pro-
duced on the hearing of the said claim, and having conferred
with the said commissioners thereon, hereby reports that in
his opinion Messrs. Dawson have no right to claim before this
commission, being, according to the law of nations, citizens of
the United States and not British subjects ; and were they Brit-
ish subjects, the claim being for transactions with the Inde-
pendent Republic of Texas before it became a State of the
United States, the claim can not be entertained by this com-
mission.
'< Joshua Bates, Umpire.^
Commission under the couvontioD between the United States and Great
Britain of February 8, 1853. (S. Ex. Doc. 108, .34 Con^. 1 seas. 382-426.)
In 1835 the territorial government of Florida
Florida Bond Casei. incorporated the ** Union Bank," with a capi-
tal of $1,000,000, with power to increase its
capital to $3,000,000. To aid in raising the ca])ital stock, the
Territory issaed bonds acknowledging its indebtedness to the
bank, which bonds were signed officially by the governor and
BOND CASES. 3595
the treasurer of the Territory, and were intrasted to the bank
with authority to dispose of them for its benefit.
The stockholders of the bank were to consist entirely of citi-
zens of Florida. They were required to mortgage personal
property and real estate to an amount equal in value to the
stock subscribed for by them ; and this property was to be held
by the bank, and applied to the payment of the principal and
interest of the bonds of the Territory as they fell due.
A charter with provisions of a similar character was granted
about the same time to the << Southern Life Insurance and
Trust Company." This company issued bonds or " certificates,"
as they were called, which were guaranteed by the Territory,
and the property of the stockholders which was held by the
company was pledged for their payment.
Through misfortunes and mismanagement these institutions
failed, for the most part, to pay either the principal of the
bands and certificates issued to them by the Territory, or the
interest upon tliem ; and up to the time when the present ques-
tion arose payment had not been made either by the Territory
or the State of Florida. Some of the bonds and certificates
were negotiated in Europe, and, in default of their payment by
Florida, a claim was made before the commission under the
convention between the United States and Great Britain of
February 8, 1853, for their payment by the United States.
The following articles in the constitution of Florida of 1838
were adverted to in the arguments of counsel and the opinions
of the commissioners and umpire:
"We the people of the Territory of Florida by onr delegates io conven-
tion assembled at the city of St. Joseph ou Monday the 3d day of Decem-
ber A. D. 1838, and of the independence of the United States the sixty-
third year, having and claiming the right of admission into the Union, as
one of the United States of America consistent with the principle of the
Federal (Constitution, and by virtue of the treaty of amity, settlement,
and limits between the United States and the King of Spain, ceding the
provinces of east and west Florida to the United States, in order to secure
to ourselves and our posterity the enjoyment of all the rights of life, lib-
erty, and property, and the pursuit of happiness, do mntnally agree, each
with the other, to form ourselves into a free and independent State by
the name of the State of Florida.
"Article 1.
" Declaration of righU,
"Clause 19. That no law impairing the obligation of contracts shall
ever be passed.
r
3596 INTERNATIONAL ARBITUATIONfiL
"Article 8.
" Taxation and revenue.
" Clause 2. No other or greater amonnt of tax or rereniie ahall at any
time be levied than may be required for the neceasary expenfles of gov-
ernment.
" Article 11.
" Public dominion and internal improvement,
"Clause 2. A liberal system of internal improvements being essential
to the development of the resources of the coontry shall be enoonraged
by the government of this State, and it shall be the dnty of the general
assembly as soon as practicable to ascertain, by law, proper objects of
Improvement in relation to roads, canals, and navigable streams and to pro-
vide for a suitable application of such funds as may be appropriated for
such improvements.
"Article 17.
" Sch^ule and ordinance.
" Section 1. That all laws or parts of laws now in force or which may
be hereafter passed by the governor and legislative council of the Tei^
ritory of Florida, not repugnant to the provisions of this constitationi
shall continue in force until by operation of their provisions or limitations
the same shall cease to be in force, or until the general assemby of this
StAte shall alter or repeal the same, and all writs, actions, prosecutions,
judgments, and contracts shall be and continue unimpaired ; and all proc-
ess which has heretofore issued or which may be issued prior to the last
day of the first session of the general assembly of this State shall be as
valid as if issued in the name of the State; and nothing in this constitu-
tion shall impair tho obligation of contracts or violate vested rights
either of individuals or of associations claiming to exercise corporate
privileges in this State.''
Mr. Eolty Qaeen's counsel, and Mr. Gaims
Aignmenti. argued the case for the claimants, assisted by
Mr. Ilannen, the special agent and connsel to
Iler Majesty's government.
The following points were taken by Mr. Bolt:
1. The principles of equity, reason, and public morals re-
quired the United States to pay this debt of Florida, con-
tracted while Florida was a Territory.
2. The terms of the treaty of cession of Florida by Spain to
the United States, in 1819, Articles II. and VI., conducted to the
same result.
3. The debt, from its origin, was a debt of the United States
as well as of the Territory.
4. In any event the United States confirmed and assumed
this debt when Florida was admitted into the Union.
«OKD CASES. 3597
Mr. Thomas, the agent of the United States, said that the
claim for the payment of the interest and ultimately of the
principal of the bonds was now for the first time presented
against the Government of the United States. Florida was
ceded to the United States by Spain on Febraary 22, 1819, and
it was agreed that the inhabitants should be incorporated into
the Union as soon as consistent with the Federal Constitution,
and admitted to the enjoyment of all the rights, privileges, and
immunities of citizens of the United States. By section 3,
Article IV. of the Federal Constitution, Congress is empowered
'< to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the
United States." In 1822 Congress by law established a terri-
torial government for Florida. In this, as in all previous
territorial governments, the legislature had no power over the
primary disposal of the soil, nor any power to tax the lands of
the United States, nor to interfere with claims to lands within
the Territ<ory. Nevertheless, the government created for the
Territory was not an agency of the United States, but a gov-
ernment by which the people could execute their purposes.
Its officials were officers of the Territory, and not of the
United States. It had executive, legislative, and judicial de-
partments, possessing the powers usually exercised by the
government of a State. Process ran in the name of the Ter-
ritory. It had complete civil and criminal jurisdiction and
possessed the power to lay and collect taxes. In the exercise
of these ample powers it chartered the bank and the trust
company in question.
The failure of the government of Florida to pay the bonds
and certificates, did not, said Mr. Thomas, impose on the Gov-
ernment of the United States any obligation, nor had that
government any authority to pay them. Its powers were lim-
ited by the Federal Constitution. It had power to borrow
money on the credit of the United States to pay the debts of
the United States, but none to borrow money on the credit of
a Territory or to pay the latter's debts. It was true that in
the act authorizing the territorial government. Congress
reserved the power to disapprove the acts of the legislature;
but this was not a new principle, and it did not render the
United States liable for all the acts of the legislature and what
was done under them. In the bill to charter the Union Bank
there was a clause requiring the express sanction of Congress
before the act should take efitect. The governor objected to
r
3598 INTERNATIONAL ARBITRATIONS.
this clause as derogatiDg from the powers of the legislatare,
and it was stricken out This fact was before the world when
the bonds were sold; and if anything were wanting to show
that it was understood that the credit of the United States
was in no way involved, it was the circumstance that the
bonds were sold and purchased at 10 per cent below par, while
the obligations of the United States were selling above it.
The bonds on their face pledged the credit of the Territory of
Florida, and not of the United States. The implication of
liability in the case of the British Government, in respect of
colonial bonds, was much stronger than in the case of the
United States, in respect of territorial bonds; and yet no one
supposed that the British Government was bound for colonial
bonds, unless it bad expressly assumed liability for them, as
in the ease of the <' guaranteed loan'' of Oanada. In support
of his i)osition Mr. Thomas cited Williams v. Bank of Michigan
(7 Wendell, 639); Opinion of J. C. Spencer (6 Wendell, 481);
State V. New Orleans Navigation Co, (11 Martin (La.) 309).
Mr. Cairns, for the bondholders, assisted by Hannen, agent
and counsel for Great Britain, in reply, supi)orted the claim on
the following grounds:
1. On the general ground of the subordinate power and
position of a Territory under the general government. The
United States, it was x>ointed out, held the supreme i>ower
over Territories, appointed their chief executives, had a large
interest in their lands, and in numerous respects held such a
responsibility and cliarge over them, and such control over
their legislation, that in Justice and Ci^uity the general govern-
ment should be responsible for their debts.
2. That the article in the constitution of Florida limiting
the right of taxation to the necessary expenses of government
might be construed, and probably was designed to be construed,
in such a manner as to prevent the State government from
making the necessary api)ropriations for the payment of the
debts of the Territory ; and that Congress, by the admission of
the Territory with such a provision, became accessory to the
wrong, and should be held to have pledged the resources of the
United States for the payment of such debts.
3. It was further contended that, under all the circumstances
of the case, the United States was morally bound to pay these
debts; that a moral obligation was as high a claim as could be
set up against a sovereign power, and was in such case ftdly
BOND CASES. 3599
as binding as a legal obligation, since a moral obligation was
the only kind of a claim that could exist against a sovereign.
Mr. XJpham, the American commissioner^
Opiniim of Mr. Tfp- delivered the following opinion:
ham.
"I have listened attentively to the argu-
ments urged in this case, but have been unable to see any
just grounds on which the claim is based.
^^To sustain the claim, one of two propositions must be main-
tained—either that the act of the Territory of Florida pledging
her credit originally bound the United States, or that Con-
gress subsequently approved and sanctioned the law of the
Territory, so as to make it obligatory on the whole people of
the Union.
"I. Could the Territory of Florida bind the United States
originaUy by her acts 9 This dei)ends entirely on the power
vested in her as a government. Florida had been originally
colonized by Spain, and had long been subject to her authority.
It was ceded by that power to the United States on the 22d of
February, 1819, with a provision that it < should be incorpo-
rated into the Union as soon as should be consistent with the
principles of the Federal Constitution.' ^
"The power of holding Territories is evidently given to the
general government. The Constitution of the United States
provides tbat Congress shall have power ^to make all needfcd
rules and regulations respecting its Territories.'
" The course of proceeding by Congress in such cases has
been to constitute, within any given Territory, whenever the
number of inhabitants will justify it, a territorial government,
with power to establish its own laws, subject only to such res-
ervations and restrictions as are . specifically named in the
charter bestowed upon it.
" The governor of Territories has been uniformly appointed
by the President of the United States; and in some instances,
for a short time, a territorial council has been appointed in the
same manner, having the usual powers and authority of a leg-
islature.
"A council was appointed in this manner in Florida until
1826, when it was provided that the inhabitants should elect
their territorial council or, in other words, their legislature
annually. By the act constituting the Territory of Florida
the governor was invested with the powers of a chief executive
magistrate; and the council or legislature was authorized, in
express terms, 'to legislate on all rightful subjects of legisla-
tion,' provided that its laws were to be reported to Congress
annually, and *if they were disapproved by Congress they
were thenceforth to be of no force.'
" Under the authority thus conferred courts were established
having the highest civil and criminal jurisdiction ; and her own
» Art. VI.
3600 INTERNATIONAL ARBITRATIONS.
laws, within her own jarisdiction^ sabjeot only to the Oonstita-
tion of the United States and the negative of Congress, con-
stituted the sapreme laws of the Territory.
<^ Florida exercised under this charter all Ae ordinary powers
of a government. She regulated her own policy, assessed her
own taxes^ granted numerous acts of incorporation, and estab-
lished various institutions deemed essential to her wel&re and
prosperity until 1835, when she passed the acts under which
the indebtedness of the Territory was incurred.
^^ Can the United States be said to have enacted either of
these laws or to be holden, as a government, responsible for
the payment of the obligation created by themf No evidence
has been shown to sustain such a proposition and no theory
of government couutenances it. Various suggestions have
been thrown out as bearing on this point, to which we propose
to advert.
^^One suggestion which has been made is: That the gov-
ernor of Florida was appointed by the President of the United
States.
^^ In like manner the governors of every province of Oreat
Britain are appointed by the Grown; but it was never under-
stood that such provinces had not full power of enacting valid,
binding laws, within their constituted sphere of action, to the
same extent as other governments. It is wholly immaterial
in this respect how the chief executive magistrate of a prov-
ince or the other branches of its government are appointed.
When constituted, they form the government of the province,
with the ordinary rights, duties, aud powers of a government.
One of the very least of these powers is the capacity to con-
tract debts in aid of the functions for which it was constituted.
Each government possesses this j^ower as one of its attributes,
in common with every other public or private corporation,
except so far as it may be expressly restricted in its exercise
by some organic or other law, and no such law is here inti-
mated or pretended.
<' Another suggestion made is: That the laws of Florida
might be disapproved by the general government. But this
does not make the laws of the Territory the laws of the Union,
or bind the Union to the obligations they imi^ose. Such laws,
when approved, only operate on the people of Florida. They
have no power beyond her limits. If disapproved, they are a
mere nullity. The power of approval of colonial laws before
they take effect has always existed in the Crown of Great
Britain from her earliest territorial acquisitions, and in every
other government having colonies or subordinate possessions.
The laws made by the colonies are, notwithstanding, their own
laws, and have never been holden to bind the mother country.
"The capability of incurring debts for certain objects ordi-
narily exists in parishes, towns, cities, counties, etc.; and
though they may be under control of the general government,
BOND CASES. 3601
their contracts and their debts incurred by them are never-
theless their own. A dififerent doctrine would confound all
principles of just and accurate responsibility, and would
seriously impair the advantages devised, through a variety of
subordinate organizations, to secure the essential ends of good
government.
'^ Again it is said: That the lands belonging to the United
States within the Territory of Florida were not liable to be
taxed. This is so. The public lands, however, of the United
States are graduated at a price best calculated to insure their
rapid settlement, and they become at once liable to taxation
on their being sold and improved. The same policy exists in
other governments. Public lands and public property are
nowhere taxed, but such an exemption was never construed to
render the general government liable for the debts of any
town, county, or province within which such lands or property
might be situated.
^<It has been also said, and numerous authorities have
been cited to the point: That the original power of the gen-
eral government over the public territory was absolute and
unlimited.
^^So the people of the United States had originally unlimited
power to adopt the form of government they preferred; and
they may still change and mc^ify their Constitution at pleas-
ure, but this does not alter the facts as to the binding charac-
ter of the acts of the government when once established..
^' The United States has chosen to extend to her Territories,
in the outset, the right of self-government, and has intrusted
them, as in the case of Florida, with powers ' to act in all
rightful subjects of legislation.' This power once granted is
complete. From thirteen original States the Union has thus
extended to thirty-one States, formed mostly from new Territo-
ries, each of which is wholly independent of the other as to
the contracts and liabilities they may make and the legislation
they may adopt, saving only their obligation to the general
Constitution of the Union. The government of a Territory
does not depend so fully and perfectly on the action of its own
people as that of the individual States, but its laws, once en-
acted and not disapproved, have precisely the same binding
power and efficacy, within its limits, as those of a State. No
one of these suggestions to which we have adverted, or the
whole combined, tend to show that the acts of Florida are
the acts of the general government, or that her responsibili-
ties are the responsibilities of the American people.
"II. It remains to consider the second point raised, whether
Congress subsequently approved and sanctioned the local law
of Florida, so as to make it a provision binding generally on
the people of the Union. It is not contended that this local
law was adopted or liability incurred by any direct act of the
general government assuming the debt. It is said, however^
3602 INTERNATIONAL i^ BBITBATIONS.
that the government has rendered itself liable for its payment,
becaase she admitted Florida into the Union as a State with-
oat first compelling her to make payment of these debt-s.
<<The argument proceeds on the gronnd that the United
States can not admit a portion of its territory into the Union
while in debt without becoming resi)onsible for such indebted-
ness. It asserts, in substance, the principle that whenever the
government has in its power, by the conditional denial of any
privilege, to compel a Territory to make payment of a debt, it
must insist on such compulsion or it shall be holden to have
assumed such debt.
^< This is a new responsibility imposed on governments.
^^ It is quit« clear to me, on the other hand, that the United
States might well assume the position that she had nothing to
do with the contracts between her Territories and individuals,
and that it is not a part of her duty to constitute herself into
a judicial tribunal to pass upon tbe pecuniary relations exist-
ing between them. Florida might well contend that this should
not be done, and that she will not be dictated to or interfered
with by the United States on the subject.
^^ I^ut this point is put still stronger. It is said that a pro-
vision was inserted into the constitution of Florida, prepara-
tory to her admission as a State, that ^ no other or greater
amount of tax or revenue shall at any time be levied than
may be required for the necessary expenses of government,^
and it is contended that this x)rovision expressly prohibits the
payment of any prior existing debt; and that the United
States, by admitting Florida into the Union with such a clause
in her constitution, became accessory to the wrong done, and
should be holden responsible for it. But this is a far-fetched
construction of the clause in question, and forms altogether
too remote a claim to impose a legal pecuniary liability. The
most necessary expenses of a government are the payment of
its obligations as they fall due. It can hardly be pretended,
if a tax should be assessed by the State of Florida upon its
citizens to raise funds to meet such obligations, that an indi-
vidual could resist payment of sach tax on the ground that it
was unconstitutional. No court would give such a construc-
tion to this provision of the constitution, and unless we hold
that such would necessarily be the decision of the court, then
the objection is without foundation, and constitutes no ground
for the assertion that the United States, by admitting Florida
into the Union with this provision, should be held to have
assumed the debts of the Territory.
" But whether such be the inteipretation of the clause in the
Constitntion or not, the inference attempted to be drawn from
it would not follow. If Florida has repudiated her debts for
any cause, it was her act, and it was not incumbent on the
United States to compel her, by any denial of the ordinary
right of admission into the Union, to pay such debts. She
BOND CASES. 3603
had no more rightful control over the acts of a Territory so
situated than she had over a State.
** The creditors of the Territory had no power, either legal or
moral, to interpose any such bar to her admission. It is not a
remedy for coercing the payment of debts which was contem-
plated by any party to the contract when entered into. The
United States, therefore, violated no principle of law, or equity,
or moral obligation in admitting Florida into the Union, and
id guilty of no laches for which she could be holden responsible
in not disapproving the acts passed by her as a Territory.
''The several States and Territories are independent sover-
eignties for the ordinary purposes of local government. They
have the power over the liberty and lives of their citizens, and
the formation of their own civil and social relations within their
precinct.
''They can incur obligations for all expenditures coming
within their appropriate sphere as fully as the general govern-
ment. Their delinquencies in any matter coming within {he
range of their powers are their own ; and, however grievous a
wrong they may inflict by such delinquencies on their credit-
ors, the precedent of holding the general government respon-
sible for such wrong would be still more disastrous. It would
impose burdens on individuals having no immediate share or
interest in the benefit received, would constitute taxation
without representation, and would confound the necessary
and rightful distinctions in the partition of responsibility and
accountability essential for the maintenance of government.
"The wrong complained of is not one which can be charged
against the United States; she is not amenable for it, and a
proper appreciation of the distinct agencies of diflferent organ-
izations in government will fully exonerate the United States
from the claim set up in this case. In my view, therefore, the
claimants have shown no ground entitling them to recovery
against the general government.'^
Mr. Hornby, the British commissioner, con-
^*S"^ L. tended that the United States was liable for
the bonds, first, because the Territories were
"subject to the absolute government of Congress." Not
only, he said, did the right of government belong to Con-
gress, but the United States also owned the unsettled lands,
the funds derived from the sale of which were at the abso-
lute disposal of the national government, and were applied
to national purposes; citing 1 Kent Cotntn, 276; Story on the
Constitution^ par. 1327; State v. New Orleans Navigation Co.,
11 Martin (La.) 313; Opinion of Butler, At. Gen. Op. 1006;
Opinion of Sherman, Senator, Williams v. Bank of Michigan, 7
Wend. 554. From an early period in its existence, the terri-
5627— VOL. 4 24
i
^
3604 INTEBNATIOKAL ARBITRATI058.
torial government of Florida created a great nomber of eorpo-
rations for public purposes. The acta for that purpose were
dnlj tsobmitted to Congress; some were disallowed, while
others were permitted to stand after having been the aobjeet
of discussion in that body. Among these was the one estab-
lishing the «' Union Bank of Florida'' (1833). This act, though
declared by a committee of the Senate to contain some objec-
tionable provisions, was suffered to stand.
Mr. Hornby contended that Congress had thus *^ authorized
and ratified^ the various acts relating to the corporations
whose bonds were before the commission ; and the discussion
had, he said, ^^ entirely turned upon the extent to which Con-
gress is affected by having given such authority and ratifica-
tion."
On this subject Mr. Hornby said:
<<Up to the Ist July 1841 the interest on the bonds was duly
paid at the times and places appointed; but from that date to
the present time no payment whatever has been made on
account of them, and the corporations have become completely
insolvent. Upon this, payment of the interest on the bonds
was sought to be obtained from the territorial government, in
accordance with the terms of the bonds; but the claim was
refused, and in 1842 the territorial legislature passed resolu-
tions declaring that the governor and council were 'never
invested with authority to pledge the faith of the Territory so
as to render tbe citizens responsible for the debts or engage-
ments of any corporation chartered by the territorial legisla-
ture.' The revenue laws of the Territory were also suspended,
'so far as they authorized the assessment and collection of a
territorial revenue in future,' \\'ith certain specific exceptions.
These acts of the territorial legislature were submitted to Con-
gress, and were permitted to pass into law without disap-
proval.
''From this time, then, until the admission of Florida into
the Union as a State, the territorial legislature persisted in its
repudiation of tbe engagements contracted on the bonds; and,
although the subject was rei>eatedly brought before Congress
in various ways — in some cases by memorial of the bondhold-
ers praying for relief— no action of Congress took place, and
the bondholders remained without redress.
<' Let us pause for a moment to consider what the position of
the bondholders and Congress would have been had the facts
alreaily stated constituted the whole case.
''The bondholders advanced their money on an engagement
entered into by the agents duly constituted by Congress for
the government of the Territory, for the payment of money by
the Territory ; such engagement being sanctioned by Congress,
BOND CASES. 3605
its acqniesceuce in the passing of the bank act having indaced
the pablic, in the language of Mr. Chancellor Kent, to invest
property and make contracts upon the faith and validity of the
charter. The Territory acknowledged itself to be indebted in
the amount of the bonds, and the ^ faith of the Territory' was
pledged for the repayment. Now, what is the meaning of a
Territory or State acknowledging itself to owe a debt, and
pledging its faith for the liquidation of it? It plainly means
this — 0€ it means nothing — that the governing power engages
that the revenue, resources, and property of tbe Territory or
State are pledged for the debt, and shall be applie<l to its dis-
charge. In other words, an obligation was created on thei part
of Florida by the executive, as the agent of the sovereign
power, and by the legislature, as the agent of the people, which
was sanctioned by Congress, to pay the debt; that obligation,
in fact, operating on all the property of the Territory of Florida.
" It has been already shown thatthe government of the Terri-
tory was at the absolute disposal of the United States (repre-
sented by Congress), in whom the right of eminent domain
was vested, and that Congress assent^ in the fullest manner
to the pledge which was given by the territorial government.
There was, then, an engagement to apply tbe resources of the
Territory for the payment of a debt incurred with the assent
of tbe sovereign power. Upon this state of facts it is obvious
that, if those principles of equity which are binding on indi-
viduals be applicable to states, it became the duty of Congress
to see that the funds which it had permitted to be pledged
should be applied to the discharge of the debts they were in-
tended to secure, and the bondholders were entitled to call
upon the United States Government to cause those funds to be
applied to their relief, or to indemnify them for loss arising
firom the failure to do so.
"The duty of thus protecting the interestsof the bondholders
was the more incumbent on Congress trom the fact that, by
reason of its being the owner of by far the greater portion of
the soil of the Territory, it was the party most benefited by the
introduction of the bondholders' capital into the Territory.
" But if the position of tbe bondholders was such as I have
stated it to have been while Florida continued a Territory, it
will be found tbat their claim assumed an entirely new form,
and acquired immeasurably more force from the moment that
the Territory was admitted to the Union as an independent
State.
" This admission took place on March 3, 1845.
"By the second section of the eighth article of tbe constitu-
tion of the new State, which received the assent of Congress,
it was declared that * no other or greater amount of tax or
revenue shall at any time be levied than may be required for
the necessary expenses of government.'
" By the introduction of this clause into tbe constitution.
Congress appears to have designed to lend effect to the repu-
3606 INTERNATIONAL ARBITRATIONS.
diating resolations of the territorial legislatare, to which it had
ahready given its assent.
^^ It has, indeed, been denied in the course of the argument
that this clanse was intended to have or had the effect of pre-
venting the State from raising revenue in order to pay the
debts of the Territory; but if any doubt could exist on this
point it must be removed by the fact that those best able to
judge of the meaning of the constitution of Florida, and hay-
ing the power to enforce its own interpretation, viz, the legis-
lature of the State, have declared that they are precluded by
the article of the constitution in question from levying any tax
to provide for the payment of the interest or principal of these
bonds or from entering on any consideration of the question
at all.
^^ It was then« when Congress admitted the insertion of this
clause with a full knowledge of the injustice it would work, that
the power to pay was taken away from the State that was then
being called into existence. But this was not all ; for the power
which had hitherto been vested in Congress by virtue of its
very sovereignty, whenever it chose to exercise it, to compel a
Territory to observe the obligation of a contract or to do that
which it was legally and morally bound to do was also divested
by the change thus effected in the form of the government of
Florida. • • •
"While, then, Florida reniained a Territory the means ex-
isted of compelling it to perform the contracts entered into in
its name, but from the moment that it became a State the
creditors of the former Territory were deprived of all means
whatever of enforcing their just demands.
" For the State of Florida, to whom it is said the debts of
the Territory have been transferred, can not be sued by the
creditors; for the Constitution expressly enacts that no State
can be sued in the United States courts, and of course a State
can not be sued in its own courts.
" Nor can Congress compel Florida to pay its debts; for it is
an independent State, and can not be coerced by the others,
either singly or collectively, into doing even that which is its
duty.
'' And, lastly, not only has Congress, by admitting Florida
as a State, deprived the creditors of the means of enforcing
their rights, but it has bestowed upon the State a constitution
which actually prevents it from paying its debts. * * * ,
"The debt, then, is at present practically confiscated. This
is the wrong which is complained of, and we have to determine
whether it is one for which the United States is answerable.
The possibility of a better state of public opinion inducing
the inhabitants of Florida at some future time to remodel their
constitution, so as to rescind the existinj^ confiscation, can not
affect the rights and liabilities arising out of the present state
of facts,
BOND CASES. 3607
<^The principal arguments advanced in opx>o8ition to the
claim, which I have not already adverted to, are these:
" 1. That Congress, having only the powers enumerated by
the Oonstitution, can do no more than is to be found within
that document, and that the power to pay the debts of a Ter-
ritory is not specified or to be implied.
^< 2. That Congress had not the power of rejecting the clause
of the constitution of the proposed State of Florida which for-
bade the collecting of revenue for any other purpose than the
necessary expenses of government, but that it was bound to
admit the new State with this clause in its constitution, how-
ever objectionable it may be.
<^ The first of these oVjections tends to raise a discussion on
a point which has long been definitely settled in the United
States.
^^ In the first place, it assumes the whole question at issue
in this case. If the United States have, by the acts of Con-
gress, iDCurred an obligation to indemnify the present claimants,
then a debt has ariscD, and Congress has express power to
levy taxes in order to pay its debto. I presume that it is not
necessary to show by argument that a technical meaning is
not to be attached to the word 'debts,' but that it signifies any
pecuniary claim, whether for a sum certain or for unliquidated
damages. But, secondly, the Constitution only prescribes the
purposes for which taxes^ etc., are to be levied. It is wholly
silent as to the appropriation of national funds arising from
other sources, such as the sale of public lands; and it has
been shown that this is a source of revenue which is peculiarly
proper to be applied to the relief of the present claimants.
And, lastly, the Constitution has never been construed in the
United States in the narrow spirit in which it is now sought to
interpret it. It is fully established by Mr. Justice Story, in his
Commentaries on the Constitution, book 3, chapter 14, that
Congress has full power to apply the funds of the nation, from
whatever source derived, to all purposes which they may deem
national.
"That learned writer concludes his remarks with these
words: ' In regard to the practice of government, it has been
entirely in conformity to these principles. Appropriations have
never been limited by Congress to cases falling within the spe-
cific powers enumerated in the Constitution, whether those
I)owers be construed in their broad or narrow sense. And in
an especial manner appropriations have been made to aid in-
ternal improvements of various sorts, in our roads, our navi-
gation, our streams^ and other objects of a national character
and importance. In soiue cases, not silently, but upon dis-
cussion. Congress has gone the length of making appropria-
tions to aid destitute foreigners and cities laboring under severe
calamities, as in the relief of the San Domingo refugees in 1794,
and the citizens of Venezuela, who suffered from an earthquake
3608 INTERNATIONAL ABBITRATI0N8.
in 1812.' So also in tbe case of three cities in [the District of]
Columbia — ^Washington, Georgetown, and Alexandria — Con-
gress assumed the debt which the cities had incurred, and for
the liquidation of which their public faith had been pledged,
and the Secretary of the Treasury was ordered to pay it.
'< It is a misapprehension of the power of Congress to sup-
pose that it was bound to admit the Territory of Florida to the
Union without any discretion as to the terms upon which the
admission was to take place. The time and mode of admission
were entirely for CongrcvSS to determine. Mr. Justice Story, in
his Commentaries, sec. 1321, shows that precedents and judicial
decisions ' have established the rightful authority of Congress
to impose restrictions upon the admission of new States.' But,
without citing authorities, it is obvious that Congress can not
be regarded as having merely administrative functions on such
admission, to record the event without control over it. It
would be powerless to discharge the most important of its
functions as the guardian of the national interests, if it were
bound to admit every new State, with any constitution its in-
habitants might think fit to propose for themselves, however
inconsistent it might be with the general welfare of tne Union,
with private morality, or with imblic honor.
" It will not be necessary to examine the history of the 'Pen-
sacola Bank' and the * Southern Life Assurance Company,'
wliose obligations were also guaranteed by the territorial gov-
ernment. As against that government, the claim of the holders
of the Pensacola Bank bonds is strengthened by the circum-
stance that that company gave the territorial government very
considerable security on real and personal property against the
liability which was incurred by pledging the public faith. The
claim, however, as against the United States Government, is
the same in each case.
^' I am of opinion, therefore, upon these facts, that the United
States Government is bound to pay to the British subjects
hereunder enumerated the principal of the bonds of which they
are holders, when the same shall become due, and to pay to
them forthwith the arrears of interest on such bonds, with in-
terest at 5 i)er cent on such arrears, up to the 14th September
1854, amounting in the whole to the sums set opposite their
names."
The commissioners having disagreed, the
Timpire's Dediion. umpire rendered the following decision:
*'This <»hiim has been brought before the
commissioners by the holders of bonds issued by the 'Territory
of I^'lorida,' while it was under a territorial government and
before Florida was admitted into the Union as one of the
States of the Ignited States.
"At the time of the issue of the bonds in question the Ter-
ritory was governed by a legislative council chosen by the
BOND CASES. 3609
people, the governor being appointed by the President of the
tJnited States. All the acts or laws of the legislative council
were required, by the law of the United States, to be laid
before Congress, and if not disapproved of, they became law in
Florida.
^*For one portion of these bonds the claimants contended
that, by the right which Congress claimed to reject or veto any
law passed by the legislative council of Florida, the United
States Government rendered itself liable to pay the interest
and principal of these bonds should Florida fail to do so.
''For another portion of the bonds the claim on this ground
was abandoned and their claim was based on the fact that
the United States had, in the session of Congress of 1843-44,
admitted Florida into the Union with a constitution having
the following clause in it: 'No greater amount of tax or reve-
nue shall at any time be levied than may be required for the
necessary expenses of government.' (Article 8 of Florida
constitution.)
"The first ground of claim need hardly be treated seriously;
it might as well be contended that the British Government is
resfionsible for all the Canadian debentures, because all the
acts passed by the Canadian parliament require the sanction of
the home government before they become laws. It will be seen,
however, that at the time these bonds were bought it was never
imagined by the buyers that the United States were in any
way liable.
"With regard to the second ground of claim — that the
United States, by having admitted Florida into the Union as
a State, with the article in her constitution above referred to,
were rendered liable to pay the debts of Florida — it may be
remarked, that Congress could not justly refuse to admit
Florida into the Union with such a constitution ; there was
nothing in it contrary |to] or in violation of the Constitution
of the United States; Congress had only the iM)wer to fix the
time of admission, and reject any constitution that was con-
trary to the Constitution of the United States; nor does it
appear that the bondholders are in any way damaged by this
article in the constitution of Florida.
"If the people of Florida refused to pay or neglected to pay.
as a Territory, would they be less likely to pay as a Statei
There would be the same people to deal with; the members of
the convention that formed the constitution were chosen by the
people; and the legislature, chosen by the people, would not be
likely to be very different from the convention. It is by no
means clear that the eighth article of the constitution forbids
any taxes for liquidating the liabilities of the State; and if
that be so, there is no difficulty in amending the constitution.
Most of the States have amended their constitutions from time
to time. The bondholders have the same remedy against the
State as they had against the Territory; they have a just
3610 INTERNATIONAL ARBITRATIONS.
claim. Bat they are ander the well-known disadvantage In
both cases — they could not sue the Territory, they can not sne
the State.
^'It has been urged that there is no way of getting at a
State government except through the Government of the
United States; this is a mistake. There is no difficulty in
the way of individuals dealing with the separate States in any
matters that concern the State alone; nearly all the States
hiftve public works and contract loans with individuals, Ameri-
can and foreign, and any person aggrieved may petition the
governor or legislature for relief. A State can not deal with
a foreign government; the intercourse with foreign nations
belongs to the general government.
''To show that the Florida bondholders never supposed the
United States in any way responsible, attention is called to
the ])rospectus issued by the agents for the sale of the bonds
created for the < Union Bank.' It is as follows:
" * Florida six per cent sterling bonds — Interest and principal paff-
able at the house of Messrs. Palmers^ MacKillopj Dent dr Co,
"* These are the bonds of the Territory of Florida, payable
to the order of the Bank of Florida, and endorsed by the bank.
They are in sums of one thousand dollars each, bearing inter-
est at the rate of six per cent per annum, payable half yearly;
the interest and ])riucipal payable in London, at the rate of 48.
6d. sterling per dollar. The bonds are payable on the 1st of
January, 180:2, 1864. 1866, and 18t;8. The proceeds of the sale
of the bonds form an addition to the active capital of the
Union Bank. The bank commenced business on the 16th of
January, 1835, with a capital of one million of dollars, with a
privilcf^e of increasing it to three millions; and it is to com-
plete that increase of capital that these bonds are to be sold.
The profits of the bank, after paying interest of bonds and ex-
penses of management, are retained to accumulate as a sinking
fund, until that fund shall be equal in amount to the bonds
issued.
"'On the lat of January 1839, u])on a bank capital of one
million of dollars, the amount of the sinking fund exceeded
three hundred thousand dollars. Owing to ]>eculiar circum-
stances the profits of the past year have been very large; but
previous experience has proved that, in ordinary years (after
paying the interest of its capital and the expense of manage-
ment), the annual surplus profits of the bank (which will be
added to the sinking fund) will exceed four per cent, which
annuity, compounded at the bank interest at 8jj per cent, will
cause the sinking fund to effect its object in fourteen years.
Indeed, the present amount of that fund, compounded at the
bank interest, w(mld pay off the whole $3,000,000 of bonds in
twenty-eight years, without any aid from the future annual
BOND CASES. 3611
profits of the bank — the average maturity of the bonds being
twenty-six years.
^^^The capital of the bank, equal in amount to the bonds and
the sinking fund, are to be retained and held as security for
the repayment of the bonds. Another ample security for their
payment is provided by a mortgage of the property of the
stockholders of the bauk, to the extent of three millions of
dollars. The value of the property mortgaged for that object
was first ascertained by the appraisement, upon oath, of five
commissioners in each county, appointed for that purpose by
the governor and the legislature of tlie Territory; and these
appraisements were again subjected to the revision of a board
of twelve directors, of whom five are appointed by the gov-
ernor and legislature. So great has been the rise in value of
every kind of property in Florida that the property mortgaged
to the bank would, even now, sell for thrice the amount of the
bonds, and each succeeding year necessarily enhances its value;
the holders of the bonds have therefore a fourfold security for
their payment, viz :
<<'l. The capital of the bank, equal in amount to the bonds.
"*2. The sinking fund, which will effect its object in four-
teen years.
" * 3. The property of the stockholders, originally appraised
at three millions, with its increased value.
"*4, The faith and credit of the Territory and State of
Florida.
" ' By the direction of an act of Congress a convention is now
in session for the purpose of framing a constitution for Florid^
and she will probably l)ecome a State this year.
" ' In extent of territory she will be the sixth State in the
Union. Her soil and climate are adapted to the profitable
productions of Sea Island and short staple cottons, sugar, rice,
Cuba tobacco, indigo, cochineal, corn, and all the other agri-
cultural staples of the Southern States, as well as many of the
productions of the West Indies. She is rapidly increasing in
numbers and wealth.
" ' Her export of cotton in the past year has exceeded 110,000
bags, and, with her growth, is greatly extending. She pos-
sesses the only good harbors on a coast of near two thousand
miles in the Gulf of Florida, which, with the contiguity of the
West Indies, gives her great commercial advantages, and will
insure her becoming a great commercial State.'
"The securities enumerated in this document are four, and
they were ample if honestly administered; but not the slight-
est allusion is made to any liability of the United States, nor
is there discoverable the smallest foundation for the claim of
the bondholders before tliis commission, which is constituted
for the purpose of settling the claims of British subjects
against the Government of the United States, or of the citi-
zens of the United States against the British Government.
3612 INTERNATIONAL ARBITRATION&
The bondholders have a jast claim on the State of Florida;
they have lent their money at a fair rate of inta*est, and the
State is bonnd by every principle of honor to pay interest and
principal ; and it is to be hoped that sooner or later the people
of Florida will discover that honesty is the best policy, and
that no State can be called respectable that does not honor-
ably fulfill its engagements."
Bates, umpire, Florida bond casesi conyention between the United States
and Great Britain of February 8, 1853. (S. £z. Doe. 108, 34 Cong. 1 sees,
pp. 246-300.)
Various claims were presented to the com-
^ mission under the convention between the
United States and New Granada of Septem-
ber 10, 1857, for the payment of overdue New Granadian bonds.
These claims being amoug those that were not decided by the
commission, they were referred to the commission under the
convention between the United States and Colombia of Feb-
ruary 10, 1804.^ The bonds and the indorsements upon them
were as follows:
DEUDA CONSOLIDADA [coat of arms] DE LA NURVA GRANADA.
Numero 434. Pesos 400.
Inscripcion al cinco por ciento.
La Repiiblica de la Nueva Granada reconoce como deuda nacional el
capital de cnatrocientos pesos, procedente de cr<^dito8 colombianosy al oual
sefiala el intcT<58 aniial do cinco por ciento, pagadcro por semestres en los
veinte iiltitnos dias de los menes de Febrero i agosto de cada afio, i de los
fondoH dostiuados ii, este <fbjeto por la lei de 20 de Abril de 1838, d, saber:
la qninta parte del siete por ciento de alcabula de importacion; el pro-
duoto del arrendamiento de minas de metales i de piedras preciosas, i de
cualesquiera fincas del Estado ; el derocho do sello de los despachos, tltulos
i diplomas (iiie se espiden por las Secretarias do Estado; i la cuarta parte
del sobrante anual de las t«8orcri}\s. I^a preaente obligacion es amorti-
zable por los me<ll(>s qno la misma lei establece: qneda anotada en el
respectivo libro snbsidiario de la denda nacional, al folio 68, i gana interns
dosde el dia I*' de Setiembre de 1838. Bogota, 27 de Noviembre de 1839.
El Secrotario del Despacbo de 1 lacienda, El Director del cr<^dito naciona!,
J. DE D. DE AUANZAZU. Y(JN. GUTIERREZ.
El Secretario de la Direccion,
Bernardo dk Alca8ar.
* Claim of tbe executors of E. RiggH, No. 153 ; claims of tbe legal repre-
sentatives of Kobert Oliver, Nos. 154-161, inclusive; claim of Jas. J.
Fisher, executor of Douglas, No. 171.
BOND CASES. 3613
Attached to these bonds were coupons as follows:
DBUDA GOHSOUDADA ORAHAnOTA.
InscripoioD al oinco por oiento.
Capital, enatrocientos pesos. N. 434.
Interet pagad^ro al portador en los yeinte nltimos dlas del mee de
agoeto de 185L Oobenta realee.
GunxRRBY. Alcasar.*
[TnntUiioii.]
CONSOUDATBD DKBT OF NBW GRAKADA.
Kamber 434. 400 pesos.
Inscription of five x>er cent.
The Bepnblio of New Granada recognizes as a national dobt the capital
of foor hundred dollars growing ont of Colombian debts for which it ap-
propriates interest at the rate of five per cent x>er annum, payable semi-
annnaUy during the last twenty days of the months of February and
August of each year, and of the funds appropriated for this purpose by
the law April 20, 1838, to wit : One-fifth of the seven per cent import tax ;
the proceeds of the lease of mines of metals and precious stones, and of
any real property belonging to the state; the stamp duty for public docu-
ments, titles, and diplomas issued by the executive departments; and
one-fourth of the annual surplus of the Treasury. The present obligation
is fundable by the means which the same law establishes; it is recorded
in the proper subsidiary book of the national debt on folio 68, and draws
interest from September 1, 183^. Bogota, November 27, 1839.
Secretary of the Treasury, Director of the National Credit,
J. DK D. DE ARANZAZU. YgN. GUTISRRBT.
Secretary of the Direction,
Bernardo Alcasar.
(Last coupon.)
CONSOUDATBD DEBT OF GRANADA.
Number 434. Inscription of five -pet cent.
Interest payable to bearer during the last 20 days of the month of
August 1851.
GuTiERREY. Alcasar.
Numero 225. Capital, 100 ps.
DEUDA CONSOLIDADA DE LA NUEYA GRANADA.
La Beptiblica de la Nueva Granada reconoce como denda nacional la
cantidod de cien pesos reales, procedente de crdditos colombianos, 1 por
mitad de intereses insolutos de vales cancelados de la deuda iuterior con-
solidada de Colombia : cuya deuda no devenga interims. La presente obli-
gacion nerd amortizada por los medics que disponga la lei, i queda anotada
* Of course, the dates of payment on the different coupons varied.
3614 INTERNATIONAL ARBITRATIONS.
en el respectiyo libro snbsidiano de la deuda naoional, al folio 183. Bogota
4 de Mayo de mil ochocieDtos treinta y nueve.
£1 Secretario del Despaoho de El Director del cr^dito naoional,
Hacienda, J. Man'l Restrspo.
J. DK D. DB ARANZAZU.
£1 Secretario do la DireocioUi
Bernardo dk Alcasar.
[Translatloii.]
Number 225. Capital 100 pesos.
CONSOLIDATED DEBT OF NEW GRANADA.
The Repablic of New Granada recognizee as national debt the snm of
one hundred pesos reales, growing out of Colombian debts, and for the
half of interest unpaid on cancelled obligations of the consolidated in-
ternal debt of Colombia, which debt does not draw interest. The pres-
ent obligation will be funded by such means as the law may provide, and
is recorded in the proper subsidiary books of the national debt, folio 188.
Bogota, May 4, 1839.
Secretary of the Treasury, Director of the National Credit,
J. DE D. DE Aranzazu. J. Man'l Restrepo.
Secretary of the Direction,
Bernardo dk Alcasar.
The commissioners being unable to agree, the claims were
referred to the umpire, Sir Frederick Bruce, who said:
Od* * f 8' Fred ^' ^^ these cases the first and most important
"erkk Bruce. " Question for <»onsideration is that of jurisdic-
tion. Does this class of debts fall within the
scope and meaning of tlie < claims' which the international
ox)nvention between the two governments was constituted to
examine and definitely settle! In order to decide this ques-
tion it is necessary to state briefly mj'^ opinion as to the nature
and attributes of a mixed commission, such as that by virtue
of which we liave the honor to sit.
" The high contriu^ting parties in substituting for themselves
a special tribunal for the settlement of certain matters at issue
between them, do not tliereby divest themselves of their
power to treat directly and in the ordinary manner all ques-
tions which are not expressly submitted to the commiRsion so
substituted in their stead. Moreover, in all cases in which
reasonable doubt exists as to its competence, and especially in
those now under consideration wliich interest directly the
credit and the good faith of one of the contracting parties, the
commission is bound to decline to entertain them, and to con-
strue its powers in a limited and not in an extensive sense.
Were the commission to adopt the crontrary principle of inter-
pretation, it would be open to the charge of assuming powers
the exercise of which is always Jealously reserved by govern-
ments to themselves. The time and manner prescribed for the
BOND CASES. 3615
presentation of < claims/ and tbe limited duration of tbe fanc-
tions of the commission, show, if further proof were necessary,
that the powers delegated to it are of an exceptional and cir-
cumscribed character.
^'The term < claims' in the convention must be construed so
as to contine it to demands which must have been made the
subject of international controversy, or which are of such a
nature as, according to received international principles, would
entitle them on presentation to the official support of the gov-
ernment of the complainant.
" The claims for payment of the * bonds' are not in my opinion
of snch character. The Government of the United States, like
that of Great Britain, has not laid down or acted apon the
principle that a citizen, who holds an interest in the public
debt of a foreign country, and who in common with the other
shareholders in that debt is unable to obtain payment of what
is due to him, is entitled as of right to the same support in
recovering it as he would be in a case where he has suffered
from a direct act of injustice or violence. The government
reserves to itself on sx>ecial grounds the right to determine
when and under what conditions such support shall be given,
and this commission can not assume upon the strength of a
general term, and in the absence of express language to that
effect, that the Government of tlie United States intended to
delegate to it powers which it has not exercised itself in a
matter of so much delicacy.
" It does not a])pear to me that the correspondence quoted
with the United States legation at Bogota is sufficient to con-
stitute such an official support on the part of the United States
Government to these claims as the circumstances of these cases
would require in order te give them a ' locus standi ' before
the commission. It is of a private or at most of an officious
character, and does not transcend the limits of that friendly
countenance and aid which the ministers of foreign powers
always give to the holders of shares in public debts. No evi-
dence has been adduced of instructions having been given by
the State Department to press for the satisfaction of these
particular claims, and indeed it is easy to see tliat many rea-
sons of policy may exist which would deter a government from
insisting on a preferential payment of a part only of the pub-
lic creilitors of a foreign state.
" The letter which has been put in evidence from General
Gass, as Secretary of State, confirms these views. He states
that the government has not been in the habit of enforcing
such claims against foreign governments. It is true that be
refers them to tbe commission for consideration, but this refer-
ence does not per se confer jurisdiction, nor does it relieve the
commission from the duty of examining whether, upon the
principles of international law, these claims fall within its
jurisdiction — a point which it belongs to the commission itself
to determine.
3616 INTERNATIONAL ARBITRATIONS.
^^I am therefore of opinion that these bond cases can not be
entertained, and that consequently the rights of the bond-
holders against the United States of Colombia are onaffected
by this decision and remain to them onimpaired."
Mr. Wadsworth, United States cbmmis-
cuim for Orerdae gjoner, delivered the following opinion :
]l63QOftZI CoupODM.
^^ Although the United States Government
has assumed the responsibility of presenting here a claim for
nonpayment of overdue coupons on a portion of the recognized
bonds of the Government of Mexico, and demands an award,
nevertheless it appears to me that neither government has
with sufficient clearness agreed to refer such claims to this
commission, and it is my decision that this case be dismissed
without prejudice to the rights of the holders of the bonds
and coupons."
Mr. Zamacona, Mexican commissioner, said:
^'The bonds, and they alone, are the ground of this claim.
Proceeding logically, then, the first point which must be con-
sidered is whether the commission can admit claims founded
ui>on the bonded debt of Mexico. This question is not only
the first in order, but the first in importance among those
involved in this case. In order to decide this question nega-
tively, the undersigned will not have to give his own individual
opinion; it will be enough to appeal to the generally accepted
views of the subject, founded upon general propriety and jus-
tice. The disturbance which would ensue in the administra-
tion, credit, and relations of modern nations, if the claims on
account of the public debt, such as those involved in this case,
were made the matter of international claims, has long been
understood. ♦ ♦ ♦ The defense here maintains that claim-
ants received bonds to the amount of $33,000. ♦ ♦ • Now,
instead of 833,0(K), the claimants present $47,000 of bonds.
It may very well be that the}' may have obtained the difference
as they say they did, but it may also very well be that they
may have received this additional sum of bonds from some
other holder who, ])erhap«, is not an American citizen. Accept-
ing this as a diplomatic claim, when in the future claims have
to be settled between Mexico and the United States, the whole
of the debt of the former would be covered by the flag of the
latter, whose citizens would appear as monopolizing Mexican
bonds."
Du Pont, dv Nemours <f* Co. v. Mexico, No. 44<), convention of July 4, 1S68,
MS. Op. IV. 367.
" Little, for the commission :
v^meroeiaii Bond .^^j^^ immediate basis of this claim is 366
Cases : Opinion
of Mr. LitUe. debentures of 500 pesos each, executed and
delivered, 1839, by Venezuela to (xardner G.
Howland and ISamuel S. Rowland, citizens of the United
BOND CASES. 3617
States, doing business in the city of New York, under the firm
name and style of G. G. & S. S. Howland, in exchange for 406
obligations of like amount each, issued by the old Republic of
Colombia to, or obtained by, said firm in 1829, and forming a
part of that portion of the Colombian public debt for which
Venezuela became responsible un.der the convention of settle-
of 1834-^ among the States which had formed that republic.
« Each bill with indorsement reads as follows:
Dbuda Consolidable de Venezuela.
Ndmero . Pesos 500. Fol. 6.
« Deuda Consolidada. Interes 5 por oiento.
d
S La R^pablica de Venezuela reconoce & favor del portador el capital
« de qainientos pesos procedentes de erudites contra Colombia con el
o interes de cinco por ciento el aflo desde primero de Enero de mil
^ oohooientos veinte y siete.
o
% Caracas 15 de Setiembre de 1899.
Ok
(§ G. Smtth. Ml. Echeandia. Viceitte Lecuna.
[Indorsed.]
Recibido y anotado bajo el No. 10 del Libro respectivo.
Pedro Manuel Firado.
Es conforme.
£1 Secretario de Hacienda,
CADENA8.
El Director,
Manuel A. CARRESa
El Vocal,
Pedro Naranjo.
[Seal of " Comis.
Liquid, de Cred.
Contra el Eetado.
1850."]
[Translation.]
CONSOLIDABLE DeBT OF VENEZUELA.
Number . 500 dollars. Fol. 6.
flB Consolidated debt. Interest 5 per cent.
'©
N The Republic of Venezne]a acknowledges itself indebted to the bearer
g in the sum of five hundred dollars, arising from the debt of Colombia,
> with interest at five per cent per annum from the first of January, one
o thousand eight hundred and twenty-seven.
o
2 Caracas, September 15, 1839.
X O. Smith. Ml. Echeandla. Vicente Lecu
3618 INTERNATIONAL ARBITRATIONS.
Received and entered nnder No. 10 of the respective book.
Pedro Manuel Firado.
Correct :
C ADEN AS,
Secretary of tlie Treasury.
Manuel A. CarreSo,
Director.
Pedro Naranjo,
Vocal.
[Seal of the 'Com-
mission for the Liquid-
ation of the Debt of the
State. 1859."]
<< No part of these bills has been paid, and they are still
owned by American citizens, claimants here.
^' The question first arising fully and ably argued by counsel
for the United States and the claimants, though not urged by
counsel for Venezuela, is as to jurisdiction. ^ Claims' only
being submitted to this commission, do these obligations come
within the meaning of that term? The distinguished umpire
of the mixed commission created under the convention of 1857
between the United States and New Granada for the settle-
ment of claims against the latter of citizens of the former, and
in which the language of submission was, mutatis mutandis^
identical with that of the present treaty, held, 1864, that ^bonds'
of New Granada were not 'claims' nnder the convention, and
therefore not within the jurisdiction of that commis8ion. If
his conclusion was correct, it perhaps would follow that these
bills do not constitute a 'claim' under the present convention,
although we are not advised whether New Granada made a
defense, on the merits, to the bonds in that case, as is done
here.
"Perhaps as good a way as any to discuss this question is
to review, by paragraphs, the umpire's opinion. He says
(italics ours) :
'' ^ The high contracting parties in substituting to themselves
a special tribunal for the settlement of certain matters at issue
between them, do not thereby divest themselves of their power
to treat directly and in the ordinary manner all questions
which are not expressly submitted to the commission so estab-
lished in their stead.'
"The implication here that only matters ^ at issue' between
the two governments are for ' settlement' would seem to lack
support in the terms of the treaty. The language of submis-
sion is :
" ^ All claims on the part of corporations, companies, or indi-
BOND CASES. 3619
viduals, citizens of the United States, ui)on the Government
of Venezuehi, which may have been presented to their govern-
ment or to Us legation at Caracas • • ♦ shall be sub-
mitted,' etc.
" It will be observed there is no requirement that matters
submitted shall have been ' at issue,' if by that is meant
an assertion of the claim by one government and a denial of
it by the other, or any existent controversy between the two
concerning it, unless such is implied in the word ^claims'
itself. While it seems probable both governments knew,
because it was their concern to know, just what claims were
embraced within the terms of designation used, there is noth-
ing in the language to indicate or require actual knowledge.
A claim filed with the American legation at Caracas within
the time limited, although unknown to either government in
fact, and therefore not at issue between them, is brought by
the terms of the treaty as fully within the competence of the
commission as if it had been the subject of heated controversy
between the two powers.
'^Moreover, if a claim so filed arose ex delicto it would not
necessarily follow that Venezuela would or could take issue
respecting it; and if, on the other hand, it pertained to bonds
it would not therefore result that she might not controvert it.
Thus, if the test of submission were whether the demand had
been 'at issue' or controverted, or even controvertible in fact,
it might happen that some claims sounding in tort would be
excluded, while others arising on contract, as bonds, would be
included. Under such a lule these bills being resisted on the
merits, and therefore * at issue,' would be embraced..
•' It is true the high contracting parties have not divested
themselves of their power to treat directly and in the ordinary
manner, questions not exprettsly submitted to the commission,
as they have not indeed resi)ecting any submitted, whether
expressly or otherwise. Hesort to a judicial agency to deter-
mine questions does not prevent the parties from determining
them themselves if they choose to do so. But it is not per-
ceived how the i)ropositiou aids the contention. To assert
that bonds are among the 'questions' reserved by the govern-
ments from the operation of the treaty, is merely another form
of asserting they are not ' claims.' It does not advance one
towards a conclusion.
"He continues:
'*' Moreover, in all cases in which reasonable doubt exists as
5627— VOL. 4 25
3620 INTERNATIONAL ARBITRATIONS.
to its competence, and especially in those now under consider-
ation, which interest directly the credit and the good faith of
one of the contractiup: parties, the commission is bound to con-
sider its ])owers in a limited and not in an extensive sense.'
**How the exercise of jurisdiction could have injuriously af-
fected the credit and good faith of the defendant state in that
case, or how it could so operate in this one, is not apparent.
Certainly the thought is not that the conservation of credit
and good faith is involved in avoiding old promises that new
ones may be the better kei)t.
''But does construction of terms in a treaty become a ques-
tion of convenience to one of the parties? Is it to be inferred
that if the Jisc of New Granada had been prepared to meet all
her bonded indebtedness a ditt'erent interpretation of 'claims'
might have been called for or allowable?
''In Hall V. Franklin (3 M. .K: W. 259) Lord Abinger said:
'"We have been stronji:ly ]>ressed with the inconveniences
that may result from the construction of the statute. We are
not insensible to them ; but the only proper ettect of that argu-
ment is to make the court cautious in forming its judgment.
We can not on that account jnit a forced construction u|K>n an
act of Parliament.'
" If we understand the umpire, and it be permitted to deduce
a general rule of treaty interpretation from his enunciation,
when words of jurisdiction are used having a wide and a lim-
ited signification, the latter is to be taken where there is room
for reasonable doubt as to which was intended. In other terms,
jurisdiction must be denied in all cases unless its existence is
manifest beyond a reasonable doubt.
"Such does not seem to us to be in accordance with the
scheme of either treaty. The very fact that the Granadiau con-
vention provided for a reference of questions of jurisdiction
(and others), about wiiich the two commissioners might disa-
gree, to an umpire for decision, is of itself a recognition that
jurisdiction might properly be declared and exercised in cases
of reasonable doubt as to its existence. For it could not be
presumed that questions would be referred as to the proper
decision of which there was no reasonable doubt; nor antici-
pated that, in case of reference, the decision would be against
jurisdiction rather than for it. Were the rule as claimed, the
umpire's duty would have been merely nominal; in lact, there
would have been no need of an umpire. A disagreement would
12)80 facto presumably have been made to work defeat of juris-
BOND CASES. 3621
diction. So under the present treaty, the fact that a majority
of the commissioners may decide in favor of jurisdiction against
the judgment of the minority, implies in itself the contempla-
tion of reasonable doubt touching the correctness of the con-
clusion reached in any case of such diflerence. Had the other
rule been intended, a division would have been made, we may
well assume, to work exclusion of jurisdiction.
"The argument of the umpire here seems to proceed upon the
hypothesis that the language of submission is of doubtful im-
l)ort; that it is susceptible of two constructions— one inclu-
sive and the other exclusive of bonds and like contractual
obligations. Even were this the case, it is more than doubtful
whether his conchision could be supported upon principle or
authority.
" His reasonable doubt rule, and especially when the doubt
springs from circumstances outside the t^rms and revelation of
the instrument itself, is not sustained, we think, by publicists
generally. Rules of treaty interpretation, as laid down by
them, apply alike to all portions of the instrument. Jurisdic-
tional parts are not construed differently from other parts.
In fact, the language ot treaties kindred to these, is in a large
sense, jurisdictional throughout, for it is definitive of authority.
"The following passages from Vattel's Chapter on Interpre-
tation of Treaties (book 2, chap. 17) are believed to be univer-
sally recognized as law,^ (emphasis ours):
"*The first general maxim of interpretation is. That it is
not allowable to interpret what has no need of interpretation.
When a deed is worded in clear and precise terms, when its
meaning is evident and leads to no absurd conclusion, there
can be no reason for refusing to admit the meaning which such
deed naturally presents. To go elsewhere in search of conjec-
tures in order to restrict or extend is but an attempt to elude
it. If this dangerous method be once admitted, there will be
no deed which it will not render useless.'
"'Since the sole object of the lawful interpretation of a
deed ought to be the discovery of the thoughts of the author
or authors of that deed, whenever we meet with any obscurity
in it we are to consider what probably^ — not what beyond a
reasonable doubt — * were the ideas of those who drew up the
deed, and to interpret it acc^ordingly.'
" 'In the interpretation of treaties, compacts, and promises
we ought not to deviate from the common use of the language
' Wheaton, Klem. Int. I-.. 1857, 355; Grutius Do Juro Bi'ili ac Pac, book 2,
chap. 16; Hall, lut. L. 281.
3622 INTKRNATIONAI. ARBITRATIONS.
unless we have very strong reasons for it. In all human affairs
where absolute certainty is not at hand to point out the way
ive muHt take probability for our ji^uide. In mont canes it is ex-
tremely probable that the parties have expressed themselves con-
formablxf to the extablishefl usatje; and such ])robability ever
affords a strong presumption, which can not be overruled but
by a still stronger presumption to the contrary.'
"'Words are only designed to express thethimghts; thus
the true signitication of an expression in common use is the
idea which custom has alWxed to that cxinession. It is then
a gross (juibble to attix a particnlar sense to a word in order to
elude the true sense of the entire expression.'
"Says Grotius:
" * If there is no conjecture which leads another way, words
are to be understood from their propriety, not in the grammat-
ical sense springing from their origin, but according to their
popular sense.' (I)e Jure Belli ac I*ac. 2, chap. 16.)
"If, then, as appears, and as President Woolsey senten-
tentiously puts it, ' the ordinary nnus loquendi obtains, unless
it involves an absurdity,' there would seem to be no room to
doubt that the word * claims' of itself comprehends overdue
bonds or bills. The two leading lexicographers of the English
tongue define * claim ' and ' claimant,' as follows:
"Webster:
" ' Claim 1. A demand of a right or supposed right; a call-
ing on another for something due or supposed to be due.
"Doth he lay claim to thine inheritance? " — Shak. 2. A right
to claim m- demjind; a title to any debt, privilege, or other
thing in possession of another.- " A bar to all claims upon
land." — llallam. 3. The thing claimed or demanded; that to
which anyone has a right, as a settler's claim. — [U. S. and
Australia.] 4. A loud call [obs).
"* Claimant, 1. One who claims; one who demands anything
as of right; a clamier. 2. A person who has a right to claim
or demand.'
"Johnson:
"'Claim, 1. A demand of anything as due. 2. A title to
any privih^ge or ])oss(»ssion in the hands of another.
" ' Claimant, lie that demands anything as unjustly detiiined
by another.'
"The corresponding word in the Spanish text, reclamacion^
is thus delined by Sj)anish authors, translated:
"'Reclamation: The act and effect of claiming, Reclamntio.
1, The op])()sition or contradiction which is made to anything
as unjust, or by showing that it contradicts itself, Reclamation
oppositio.
BOND CASES. 3623
"*2. The demand made for anything by him who has the
right of property in it <againRt liim who possesses or denies it. —
Salva.
" ' Keclamation (daim) : The opposition or contradiction tliat
is made in words or in writing against anything as unjust, or
by showing that it contradicts itself; and the chiim or demand
for anything by him who has the right of property in it against
him who possesses it.' — Eseriche: Die. of Legislation.
^' Should there appear to be a meaning in the word of one
language not found in that of the other, of course it should be
disregarded, and only that meaning taken which is common to
both.
" Equally comprehensive is the term, if its legal sense is
sought. Mr. Justice Story, speaking for the Supreme Court
of tlie United States, in Prigg v. Pennsylvania (16 Peters, 615),
said:
" * What is a claim ? It is, in a just juridical sense, a de-
mand of some matter as of right, made by one person upon
another to do or to forbear to do some act or thing as a matter
of duty.'
"Lord Chief-Justice Cockburn, in Queen r. The Guardians
(0 L. Q. B., 395), held that an order of a court upon a public
authority to pay a designated sum of money weekly was a
*debt, clainij or demand' within the meaning of statute of
limitations. Hlackburn, J., in the same case, said ^ claim or
demand' would 'cover everything.'
'^Deady, J., of the circuit court of the United States, con-
struing the word as used in an act of Congress, held this
language :
*''In my judgment a claim vj^on the Vnited States is some-
thing in the nature of a demand for damages arising out of
some alleged act or omission of the government, not yet pro-
vided for or acknowledged. As the term imi)orts, it is some-
thing asked for or demanded on the one hand and not admitted
or allowed on the other ( Worcester, Bouvier — Claim). When
the demand is admitted or provided for by law, it is not a mere
claim, but a debt. It no longer rests in mere clamor or peti-
ticm, but is something due upon which an action may be main-
tained.' (I)owell r. Cordwell, 4 Saw. 228.)
''The qualifying words 'upon the United States' distinguish
this definition. United States obligations about which there
is no contention are paid on demand without controversy. The
distinction, however, here taken between * claim' and 'debt,
while not against this claim, is not a recognized one in treaty
expression. In the conventi<m {18(K5) between the United
r
3624 INTERNATIONAL ARBITRATIONS.
States and France, *for ])ayment of sums due' from the latter
to citizens of the former, provision was made for the settle-
ment of demands of all kinds, which were denominated indis-
criminately 'debts' in one part of the instrument and 'claims'
in another.
"Claim is the generic term emjdoyed in the legislation of the
T'nited States to express every form and character of demand
that one can urge against another. It would seem quite
superfluous to cite particular statutes or authority.
"So in Hritish legislation. The vice-admiralty courts, by
iu:t of Parliament, June 8, 1863, for illustration, had their juris-
diction defined, for the most part, by the use of the very word
in respect of every matter, whether arising ex contractu or ex
delicto^ brought within their cognizance. That jurisdiction
was extended to —
"'(1) Clahns for seamen's wages; (2) claims for master's
wages; (3) claims in respect of pilotage; (4) claims in respect of
salvage of any ship or of life or of goods therefrom: (5) claims
in respect of tonnage; ((») claims by damage done any ship; (7)
claims in resi)ect of bottomry ; (8) claims in respect of any
mortgage where the ship has been sold,' etc.
" Keference is also made to Laws of Venezuela, 1864, vol-
ume 2, page 326.
"It is laid down, it is true, by recognized authority that
where language is enii)loyed in a treaty which is susceptible of
two meanings, ' that is to be preferred which is least for the
advantage of the party for whose benefit the clause is inserted.
For, in securing a benefit, he ought to exi)ress himself clearly.'*
Tlnue does not appear to be ambiguity, or lack of clear ex-
jiression her<», however, in the language of submission. Were
it otherwise it could not be said that these 'claims' are sub-
niitt(Ml to arbitration more for the benefit of one party than
the other. It was expressly done to 'preserve unimpaired as
rcciprovaUij (Usircd the good understiinding of both nations/
"And, again, the general doctrine just stated would be
subject to modification by this principle, announced by Mr.
Justice Story, on behalf of the Supreme Court of the Unite<l
States, in Shanks r. Dupont (3 Peters, 249), which is thoroughly
emb<'dded in the jurisprudence.of the United States and is be-
lieved to be internationally a sound one, to wit: *That where
a treaty admits of two constructions, one limited and the
» WoolHoy Int. L. ^ 113
BOND CASES. 3625
other liberal, one wbutli will further and the other exclude
private rights, the moat liberal exposition should be adopted.'
It was affirmed in recent years by the same high authority in
the case of Hauenstein t\ Lynham (KM) IT. S. 483), Mr. Justice
Swayne speaking for the court, as follows: 'Where a treaty
admits of two constructions, one restrictive as to rights that
may be claimed under it and the other liberal, the latter is to
be i)referred.' This finds support, if any were needed, in whsit
Grotiussays: ' In the things which are riot odious words are to
be taken according to the general propriety (totani jyraprietatein)
of po])alar use, and if there are several senses, according to
that which is widest.' (De Jure Belli ac Pac. book 2, chap. 16.)
"The qualifications of the general term, * claims,' may, per-
haps, within the limits of fair construction, be regarded as if
embodied in a proviso. The treaty would have meant the same
had it read : All claims of citizens of the United States, etc.,
shall be submitted to a new commission, i)rovided they shall
have been presented to the Washington government, or to its
legation at Caracas, before August 1, 18(>8. It is a rule of
construction, generally recognized, that a proviso is to be con-
strued, so that the general enactment shall admit of the fullest
operation possible, consistent w ith the terms of restriction.
"The Supreme Court of the United States, in United States
r. Dickson (15 Peters, 1<»5), held this language: 'We are led
to the general rule of law which has always prevailed and be-
come consecrated almost as a maxim in the interpretation of
statutes, that when the enacting clause is general in its lan-
guage and objects, and a proviso is afterwards introduced,
that proviso is construed stricrtly and takes no (^ase out of the
enacting clause whi<ih does not fall fairly within its terms.'
In the contemporaneous cnise of Minis r. United States (lb.
445) the same court said: 'The office of a ])roviso generally is
either to except something from the enacting clause, or to
qualify or restrain its generality, or to exclude some possible
ground of misrepresentation of it, as extending to cases not
intended by the legislature to be brought within its purview.'
"Almost in the language of the court it can be said: The
office of the qualifying words relative to * claims' in the treaty
is to except demands from the general terms 'all claims' and
to qualify and restrain their generality. And it would seem
to be of little moment in what form those qualifying words
were i)ut, whether in that of a proviso or that in which they
3626 INTERNATIONAL ARBITRATIONS.
stand. The principle of construction would be the same— that
being that the qualifying: words are, while the general terms
of submission are not, to be taken in a restrictive sense, if
there is to be any distinction.'
"The comprehensive term ^claims' is the one always employed
in similar claims treaties, though sometimes with a synonym —
or as near that as the language attbrds — and is always accom-
I>anied with words of restriction. The restriction relates to
ownership, time, origin, character, or circumstance, or to sev-
eral of these. Under the convention between the United
States and Kcuador (1864) ownership was the only qualifica-
tion. It was competent to present any claim before the com-
mission against either state, provided it belonged to a citizen
of the other. In the treaty of 1834, between the United States
and Spain, a single circumstance determined admissibility,
to wit, that the claim had been 'i)referred by either party
against the other.' Usually several of the elements are em-
braced in the terms of qualitication. The treaty of 1795, be-
tween the powers last mentioned, comprehended in them
ownership, time, and chanicter. The claims for adjustment
there were *for losses sustained by citizens of the United
States in consequence of their vessels and cargoes having been
talen by the subjects of His Catholic Majesty di(ring the lats
irar between Spain and France.' In 1832 the United States
and the Two Sicilies treated lor an indemnity to be paid by
the latter to American merchants ^for losses inflicted upon
them by Murat by the depredations, seizures, confiscations,
and destruction of their vessels and cargoes in the years 1809,
1810, 1811, and 1812.' Here are the elements of ownership,
time, origin, and cliaracter. All the five elements named are
embraced in the (lualifying terms of the ''AlahamaclsLxms^ treaty
of 1871. It is unnecessary to i)articnlarize or to illustrate
further. But attention may be directed still to two conven-
tions under this li(»ad, that of 1802 between the United States
and Spcain, embracing the (lualifying elements of time, owner-
ship, and cliaracter, and that of 1SG4 between France and the
Itepublic of Venezuela, comprehending the two latter only.
'' In the former treaty i)rovision, by reference to a commis-
sion on behalf of individuals of both countries, was made for
' H. r. TiuintoD, St. .lamas 9 H. A C. KM\; VoorlieeH r. Bank, 10 Pet. 449;
Wayiiiau r. Gauthonl, KJ Wheat. 30; liond r. i;. 8., 19 Wall. 227.
BOND CASES. 3627
the adjustment of Hhe claims which have arisen from the
excesses committed during the late war by individuals of
either nation, contrary to the lairs of nations^ or the treaty
existing between the two countries.' In the latter, provision
was made for the settlement of 'claims of French subjects for
expropriations, damages, and injuries of the nature of those
for which, according to the law of nations, the government of
the republic is responsible.' In these two treaties there would
seem to be an implied recognition by each of the parties to the
present treaty, scarcely less strong than if expressly stated,
that in order to restrict the term ' claims' in a treaty to those
demands which either state, on behalf of its citizens, would
diplomatically press against the other, it must be so nominated
in the instrument.
'* In the treaty under which we sit there are but three quali-
fying elements embraced — ownership, circumstance, and time.
The claims must be those of citizens of the United States.
The circumstance of their having been presented to the Gov-
ernment of the United States, or to its legation at Caracas,
before August 1, 1868, must exist. And, of course, the claims
must have existed before that date. The element of charac-
ter is wholly wanting. Would it not constitute a material
change in the treaty to insert a qualifying phrase fixing the
character of the claims contemplated; such, for instance, as
that embraced in the last two treaties quoted from or such as
would distinguish torts from contracts? On an indictment for
forgery where the evidence must establish guilt beyond a rea-
sonable doubt, could it be maintained that the interpolation
after the words 'all claims,' of the phrase 'for which accord-
ing to the law of nations the Government of Venezuela is
responsible;' or of the phrase taken from the United States-
Mexican treaty of 18G8, 'of citizens arising from injuries to
their persons or property;' or of the phrase 'not arising ex
contractu;^ or of the phrase ' not including any bills, bonds, or
other like evidences of debt,' would not constitute a material
alteration of the instrument?
" Considering that it is common in such treaties as this
among nations to qualify the word 'claims' by indicating the
character of the demands to be adjudicated or adjusted by
descriptive or apt words, does there not arise a clear implica-
tion that where such qualification is omitted none was in-
3028 INTERNATIONAL ARBITRATIONS.
teiHled? The ])rincMi)le aimouiujecl by the Supreme Court of
the United States per Marshall, (\ J., In re ' The Nereide/ 1)
Cranch, 410, seems internationally sound and ap]>licable here.
The court said :
"* Treaties are formed upon deliberate reflection. Diplo-
matic men read the public treaties made by other nations'
[and of course by their own], ' and can not be 8up|K)sed either
to omit or insert an article common in jiublic treaties without
being aware of the effect of such omission or insertion. Neither
the one nor the other is to be ascribed to inattention.'
^*But what has been the practical construction of the term
'claims' in such treaties! Aside from the decision under dis-
cussion, it seems to have been generally taken in its usual and
comprehensive sense. Sir Edward Thornton, the umpire of
the commission between the United States and Mexico, 1868,
comprehending the adjustment of 'all claims on the part of
• • * citizens * ♦ * art Hinij from injur ten to their per-
sons or properly ^"^ etc., held, March lS7(i, that claims arising
ex eontraetu did not come within the purview of the treaty;
not because, however, they were not embraced within the
meaning of the general term, but because they did not fall
within the terms of its qualification. In other words, because
they were not of the eharacter of the claims therein coiitem-
jilated. lie said :
'^ ' In the case of Dewliust and Emerson v. Mexico, No, G73,
the claim arises out of an alleged contract with the Mexican
(iovernment, throiigli its agent, for the supply of munitions of
war, some of which are stated to have been delivered to that
government. * * * The umpire maintains his opinion that
the acts complained of did not constitute one of those injuries
to the property of l\ S, citizens, which was contemplated by
the convention of July 4, 18G8.'
*' The present claim was dismissed by the former commission
as 'being consolidated debt' (a mistake in fact, for it was con-
Holidablc debt only). l>ut that commission allowed the claim
of R. W. Gibbs, founded upon a Colombian obligation for
$5,()(K), the amcmnt allowed being Venezuela's distributive
share (28A per cent).
"The convention of September lil, 1808, between Great
Britain and Venezuela, entered into 'with the view of deter-
mining the amount of (dl pending JMfish chums upon the Gov-
ernment of Venezuela,' provided a tribunal with an umpire^
' to sit as a mixed commission to fix the amount due to those
BOND CASES. 3629
British subjects wliose claims liave not yet been adjudicated
upon.' That conunission, 18G9, allowed by the decision of the
umpire eleven claims on account of Venezuelan notes, common
and preferred stock of the Bank of V'enezuela, and Colombian
bonds, amounting, including interest, to $139,104.04, to wit:
ToW. A. Cage, $3,870.42; Sarah Campbell, $4,005.01; Court
& Borde, $6,058.87; L. Augustini, $2,150.16; W. A. Andrei,
$7,199.87; JH. O'Callaghan, $10,093.21; M. A. Elizando,
$5,498.07; Robert Syers, *7,924.72; Bernardo Daly, $1,527 33;
Arthur Halle, $70,795.06, and to J. A. S. Cipriani, $10,971.33.
" Other instances could be supplied, but these being contem-
poraneous will suffice.
*' Although tlie opinion of either government respecting the
interpretation and scope of the treaty would not bind us, still
such opinion would be entitled to high respect and maybe
cited as any other authority. It would seem from the note of
Mr. Scott, American minister at Caracas, to Mr. Bayard, Sec-
retary of State, under date of January 14, 1889, that the
Venezuelan Government regarded the claim of Nathaniel Jar-
vis, pending here, alleged to be founded upon bonds issue<l in
1863 to him by said government, as coming within the purview
of the treaty, and as proper to be submitted to the commission
then about to be formed.
" The umpire proceeds: ' Were the commission to adopt the
contrary principle of interpretation it would be open to the
charge of assuming powers, the exercise of which is always
jealously reserved by governments to themselves.'
" So much of this argument as may not be said to fall under
the head of petitio prindpii seems to proceed upon an unten-
able assumption. It does not follow that if jurisdiction is not
to be declined because there may be a reasonable doubt of its
existence, the 'contrary i)rinciple' must be adopted, which
would seem to be, to wit: To take jurisdiction unless its exclu-
sion is required beyond a reasonable doubt. Why go to either
extreme? Why not take the plain middle ground, ascertain-
ing the meaning of the language employed according to the
ordinary standards of interpretation 1 It is not apparent how
a body passing upon a judicial (juestion, any more than upon
a mathematical one, can be concerned about what may be
charged against it if led to this conclusion or to that. Were
it otherwise, a charge of assumption of power is no more to be
3630 INTERNATIONAL ARBITRATIONS.
avoided perhaps tlian a complaint of failure to exercise power
conferred, through jipprehension of such cliarge.
** The umpire goes on : ' The time and manner prescribed for
the presentation of claims, and the limited duration of the
functions of the commission, show, if further proof were neces-
sary, that the powers delegated to it are of an exceptional and
circumscribed character.'
*' Very true. But this fact, it is believed, is no sufficient
warrant for giving to terms employed in a treaty other than
t'.ieir ordinary meaning in like relation.
*' Says he in continuation: *The term "claim" must be con-
strued so as to confine it to demands which have been made
the subject of international controversy, or which are of such
a nature as according to received international principles
would entitle them on presentation to the official support of
the government of the complainant.'
'* It occurs to add to what has already been said touching
this proposition: In discussing the scope of the word * claim '
in the treaty of 1819 between the United States and Spain,
Mr. John Q. Adams, Secretary of State, in his letter to Messrs.
White and others of March I), 1822, observed that the treaty
under the general term ' claims ' —
u i Provided for the settlement of claims on contracts as well
as claims on torts.'
"'The government was indeed aware' he says, 'that the
abstract right to its interi)osition of citizens who had suffered
by acts of foreigners, without any cooperation of their own,
was more dear and imperative than that of others who had
voluntarily staked their pro])erty on the good faith of Spain;
and in the course of the negotiation a proposal was maide to
omit the renunciation which included the latter class of these
claims. It was, however, finally agreed to, with the full
understanding that all claims should have the same benefit of
the provision.
'''As there is no limitation in the words of this renuncia-
tion with regard to the nature of the transactions in which the
claims originated, whether by contract or by tort, so none was
intended. These were claims, of all of which it was believed
that the only possible chance of obtaining any satisfaction to
the claimants consisted in the execution of the treaty.'^
" It was not thought then, it would seem, that interpretation
could discharge the office claimed for it in the opinion under
consideration. Had it been, the 'renunciation' referred to
Am. state Papers, Kor. liel. VI. 796.
BOND CASES. 3631
would have been implied, aDd its insertion superflnous. If the
umpire's doctrine be tenable, there is no difference iu meaning
between these two sentences in a chiims treaty:
"* All claims on the part of "'All claims on the i)art of
cor|)orations, com])anies, or corjmrations, companies, or
individuals, citizens of the individuals, citizens of the
United States, upon the Gov- United States, upon the Gov-
ernment of Venezuela, which eminent of Venezuela, which
may have been i)reSented to have been made the subject of
their government or to its lega- hiternational controverspy or
tion at Caracas, before the first ichich are of such a nature a^j
day of August 1808 • • • according to received interna-
shall be submitted to a new tional yrincipleSy would entitle
commission.' them on presentation to the offi-
cial support of the government
of the complainant^ and which
may have been presented to
their government or to its lega-
tion at Caracas, before the first
day of August 1868 • • •
shall be submitted to a new
commission.'
"It would be a bold declaration to assert their substantial
sameness. Had it been the intention thus to limit the claims
in character^ it is ditticult to understand why language to that
end was not used as had been done before, as seen, and by the
same parties, in conventions with other powers.
"The umpire says further:
*''The claims for payment of the bonds are not, in my opin-
ion, of such a character. The guvernment of the United
States, like that of Great Britain, lias not laid down or acted
upon the principle that a citizen who hohls an interest in the
public debt of a foreign country, and who, in common with the
other shareholders in that debt, is unable to obtain ])ayinent
of what is due him, is entitled as of right to the same support
in recovering it as he would be in a case where he had suffered
from a direct act of injustice or violence.'
"Very true; bonds are not of the character of claims ordi-
narily diplomatically pressed by one government against
another; but since the <*elebrated circular of Lord Palmerston,
in 1818, to British rei)rese:itatives at foreign courts, it would
ax>pear to be the established English doctrine at least that a
3ii32 INTKKNATIONAL AUIUTRATI0N8.
state has the rujht authoritatively to iiiteri)08e in behalf of its
subjects or citizens in support and enforcement of claims
founded on bonds ngainst other states, if it chooses to do so.
(Philliniore, Int. L. vol. 2, 8; Hall, Int. L. 236-237.) And both
the United States and Great Hritain, as also other powers,
have repeatedly, throujich treaties and other agencies, secured
money due their citizens on contractual obligations from other
states. And why not?
'* Hall, with m\xv\\ rcascm, says:
*'* Fundamentally, however, there is no difference in principle
betwt en wrongs intiicted by breach of a monetary agreement
and other wrongs for whit li the state, as itself the wrongdoer,
is immediately responsible. The difference which is made in
practice is in no sense obligatory, and it is open to the govern-
ments to consider oa<^h case by itself, and to act as seems well
to tbem on the merits.'
"*The umpire goes on: 'The government reserves to itself
on special grounds the right to determine when and under
wbat conditions such support shall be given, and this commis-
sion can not assume, upon the strength of a general term and
in the absence of express language to that effect, that the gov-
ernment of the United States intended to delegate to it pow-
ers which it has not exercised itself in a matter of so much
delicacy.'
''The strength of language does not consist in multiplicity
of words. The 'strength of a general term' may be quite as
effective tis that of many terms. Where, in words, '«/i claims'
are submitted, there can not be said to be an 'absence of ex-
press language' of submission, nor room for assumption in that
regard. While the United States, under its settled practice
hitherto, would not dii)lomati(!ally urge the payment of bonds
to its citizens upon another state, it by no means follows, either
from principle or precedent, that it would not treat for their
settlement along with other claims or even alone; and to put
a narrow construction upon language in a general claims
treaty, so as to exclude boiids upon the grounds suggested,
would seem to have no better warrant than narrowly to con-
strue conventional language conferring other benefits, to attain
which a state would decline diplomatic interference or a resort
to force.
'* He says further :
"' It does not appear to mo that the correspondence quoted
with the United States legation at Bogota is sufficient to con-
BOND CASES. 3633
stitate such au official sui)i>ort on the part of tlie United States
Government to these claims as the circumstances of these cases
would require to give them a ^Hovus sUindi^^ before the commis-
sion. It is of a private and at most of an officious character,
and does not transcend the limits of that friendly countenance
and aid which the minister of foreign i)owers always gives to
the holders of shares in public debts. No evidence has been
a<lduced of instruction having been given by the State De-
partment to press for the satisfaction of these particular claims,
and indeed it is easy to see that many reasons of policy may
exist which would deter a government from insisting on a pref-
erential payment of a part only of the public creditors of a
foreign debt.'
" Is it the thought here that, had the Secretary of State
been more urgent in the tone and chanicter of his dispatcdies
to the American minister about the bonds, the words of the
treaty would or might have borne a different interpretation,
and the bonds been accorded a locus standi before the com-
mission f
*' It may be that reasons of policy may on occasion deter a
state from insisting on preferential payments of bonds to its
citizens or subjects as stated; and such also may not at times
be the case, as evidenced under the English- Venezuelan treaty
of September 21, 18G8, above referred to. The only way to
ascertain whether such be the fact in any given case of
conventional compact in the presence of that character of
indebtedness would seem to be from the language of the
instrument itself, applying to it the ordinary meaning of the
terms employed.
*' And it may be remarked that, in the task of interpretation,
a commission like this, it is believed, has little to do with
l)olicies outside of the revelations of the instrument nnder
consideration, especially as these, with respect to either gov-
ernment concerned, are liable to change, and as between the
two are often variant. * What is termed the policy of the gov-
ernment with reference to any particular legislation,' said Mr.
Justice Field in Hadden r. Collector (5 Wallace, 111), Ms gen-
erally a very uncertain thing, upon which all sorts of opinions,
each variant from the other, may be formed by diflerent per-
sons. It is a ground which is too unstable upon which to rest
the judgment of the court in the interpretation of statutes.'
In the English case of St. Gregory, cited in Potter's Dwarris,
214, Taunton, J., said: ^ The judgment was arrested by Mr.
Justice Bailey, partly on the consideration of public i>olicyj
3G34 INTERNATIONAL ARBITRATIONS.
a very questionable and unsatisfactory ground, because men's
minds differ much on tbe nature and extent Of public policy.'
And Williams, J., added: 'The ground of public policy is a
very unsafe one; it is best to adhere to the words used in the
act of Parliament.' *
"Were the question propounded. What has been the policy
of the United States or Great Britain, if either can be said
to have any, with respect to providing in claims treaties for
the discharge of contractual obligations toward her citizens f
the answers would likely be materially difterent. The con-
trolling ^])oli(:y' with us, as respects interpretation, is the
tobeassumed one, that nations in their treaties with each other
say what they mean and mean what they say. *The only
sound principle,' says Story, Ms to declare ita lex acripta estj
to follow and to obey; nor, if a principle so just could be over-
looked, could there be well found a more unsafe guide or
practice than mere policy and convenience. Men on such sub-
jects complexionally differ from each other. The same men
differ from themselves at different times. The policy of one
age will ill suit the wishes or policy of another.' (Story on
Const., §4.'{(>.) It is to be borne in mind that the question is
not what Venezuela might do in respect of the payment or
disposition of her public debt or other contractual individual
obligations, in her capacity as sovereign, or what the United
Stat(»s might do under an established jmlicy in the absence of
treaty compact, resju^cting the claims of her citizens holding
any of such obligations. The sole question is, whether, cls
determined by the langHiuje of the treaty^ fairly and according
to recognized canons of construction and interpretation con-
sidered, the high contracting parties did in fact submit this
claim to the connnission.
" Fnmi any and all points of view, therefore— whether it be
that of the ordinary (which is the treaty) import of the terms;
that of their legal signification and use; that of usage in fram-
ing claims treaties, or of actual practice under them — we are
led to a different conclusion from the umpire. To refuse juris-
diction here would, in our opinion, be in effect to interpolate
a most material clause in the treaty. In fact, to attempt
interpretation' of the plain words ^ all claims' at all, in the
' nnilcliiij; Socirty r. Keut, L. U. !>, App. CaseH, 273; Hadden r. Taylor,
42 N. Y. 2:>\)\ \{. r. narlumr. S H. *V ('. 9!>: Attorney-General r. Lockwood,
y M. Sl W. :W5; K. K. Co. r. PittMburg, 1()4 IViiu. St. .'>43.
BOND CASES. 3635
connection employed, we should have felt, but for the opinion
under review from so able a publicist, would be violative of
VattePs first rule, above quoted. We should have said what
seems even yet to ui?true, to wit: They need no interpretation.
*<In coming to this conclusion we have not been unmindful
that too close adherence to mere words or too rigid an appli-
cation of formulated rules is to be as much guarded against
as too great a laxity in these respects. This claim was placed
with the American legation at Caracas as early as February
22, 1855. It was presented to the government at Washington
August 15, 1857, and on December 22 following, the Secretary
of State, Mr. Cass, directed the American minister at Caracas
to bring it to the attention of the Venezuelan (Government and
to exercise ^ good oftices' in that behalf. Before that it was
urged upon the attention of the latter government by Mr.
Henry S. Sanford, as agent of the claimants. It was presented
to the former commission in 1868 through the Unite<l States
legation at Caracas. So that it not only comes within the
literal terms of the treaty as to presentation, but it was thor-
oughly known to each government when the present conven-
tion was framed as a pending claim. There is no question,
from the showing here, that, in their origin, these bonds per-
tained to citizens of the United States. What the considera-
tion of the 406 Colombian bonds was appears inferentially.
The great bulk of the 5 per cent Colombian domestic del)t of
which they formed a part had as its basis indebtedness for
military and other supplies. In their letter to the Secretary
of State, August 15, 1857, the claimants speak of this class of
obligations as ^founded upon considerations of the highest
character.' It seems quite probable, as claimed in the oral
argument, that the Colombian bonds were issued to the ^ew
York firm in payment for merchandise, though at what rate
does not a])pear. This claim conies within the treaty.
"The allowance of the claim is resisted upon this ground,
stated in the language of the learned counsel for Venezuela:
'* 'The defence set up by Venezuela in this case is that the
bills of credit upon which suit has been brought, being a por-
tion of what in 1839 and ever since has been known as Hhe
(^onsolidable debt of Venezuela,' have never been directly pay-
able in money; that the only method of satisfying them at any
time, as was known to those whom the claimants represent
when the bills were applied for and received, was by their con-
version into the cmisolidated debt of Venezuela, the latter
5627— VOL. 4 26
3636 INTERNATIONAL ARBITRATIONS.
afterward to be satisfied in money; and that tbe method of
ccmverting such bills into that consolidated debt was by auc-
tiony in which a limited amount of the hitter was exposed to
be bought by the holders of the former, of which comparatively
very large amounts were outstanding; the subsequent method
of obtaining money for the consolidated debt being also a like
auction, where the debt offered wouhl in turn be out of all
proportion larger than the amount of money to be bid for.'
'*The debt of Colombia was divided into two general classes,
the foreign and the home debt. The former amounted to near
30 million dollars, bore G per cent interest, and its payment was
specially provided for. The latter, made up itself of several
classes, aggregated some liG millions, and carried two rates of
interest. A part bore 5 per cent, a part 3 jier cent, and a part
was noninterest- bearing. Colombian bonds were issued on ac-
count of the interest-bearing portions of the home debt under
an act of May 22, 1820, which constituted what was called
*the national consolidated Colombian debt.' To the payment
of the interest thereon, some fourteen distinct sources of re ve
nue were specifically dedicated by said act. There was also
special provision nmde therein for the redemption of the prin
cipal.
"Theexchang(»d bonds of tiie llowlands were a part of this
5 per cent consolidated Colombian debt. At the partition of
the Colombian debt among the constituent States of the old
republic under the treaty between Venezuela and Nev/ Gra-
nada of 1834, 28A per cent thereof fell to Venezuela, and in her
portion were these 40G I lowland bonds received by them before
the dissolution. That part of the treaty bearing particularly
upon this subject reads as follows:
>' *Art. 10. The consolidated debt at five per cent annual in-
terest, wiiich is inscribed in the great book of the national
debt of Colombia, amounting to r),374,00r).75 pesos, which, by
the sinking fund made up to December 31, 1829, remains re-
duced to 5,35!),3.>5.7."> pesos, is divided in the following manner;
'*'The Republic of Venezuela binds itself to recognize the
sum of 1,527,410.37^ pesos.
*' 'The Republic of New (iranada binds itself to recognize the
sum of 2,079,027. 87.^ ])esos.
*''And the Republic of Kcuador will recognize the sum of
1,152,261.50 pesos.
"'Art. 12. The governments of the three reimblics, after
the exchange of ratitications of the present convention, will
BOND CASES. 3637
proceed to the conversion of the national consolidated Colom-
bian debt into a debt belonging to each one of them for the
amounts which respectively pertain to them, calling in and
cancelling the Colombian bonds conformably to the regulations
which may be laid down by the respective legislatures; these
so called in and cancelled will be transmitted to the commis-
sion of ministers of tlie three republics, which shall meet in
the city of Bogota for their veriiication and destruction.'
** Accordingly, in her law of April 26, 1838, sec. 7, Venezuela
provided :
** ' For the conversion of the debt of Colombia into the debt
of Venezuela, treasury bills of credit payable to bearer will be
issued from fifty up to one thousand pesos, in accordance with
the request of the creditors.'
" Like the old republic, she made special provision for the for-
eign or European debt falling to her; and likewise set apart
several — some four or five — distinct sources of revenue for
payment, interest and principal, of the three and the live per
cent Colombian domestic debt.
" In addition to these resources, this Colombian debt, with
the Venezuelan bonds or bills issued on account thereof, was
made convertible into the consolidated debt of Venezuela, so
called. This consolidated debt was a sort of irreducible sink-
ing fund fixed at rA}0,000 pesos, on account of which 5 per cent
bonds were issued in exchange, according to a prescribed
method, for said convertible or consoiidable securities, and
for the yearly payment of the interest on which, and the reduc-
tion of the principal, 50,000 pesos were permanently appropri-
ated from the customs revenue. After payment of interest on
the consolidated bonds, the balance of the 50,000 was devoted
to the reduction of the principal of the consolidated debt,
those holders being paid who wcmld bid at * auction' the lar-
gest amount of them for a given sum (100 pesos) of money, not
less than dollar for dollar. The sinking fund was then reim-
bursed from consoiidable securities in the same way; that is,
the holder of consoiidable bonds w^ho would give most of them
for a given amount of the consolidated would obtain it.
''The 10th article of the act provided:
'^^ The holders of evidences of the debt of Colombia who shall
not convert them in conformity frith this decree shall preserve the
rights which they have acquired in respect to the manner and
terms of payment ; but those who request and obtain the conver-
sion will have no other rights than those which this law confirms
in articles i and 10,''
3638 INTERNATIONAL ARBITRATIONS.
"Articles 4 and 10 referred to are the ones providing for the
payment of interest on <and the reduction and replenishment
of the consolidated debt or sinking fund, as stated.
"The act of May 10, 1839, followed. It provided :
" ^Art. 1. In order that the total amount of the Colombian
debt may be determined without delny, and in pursuance of
the arrangements made by the convention of December 23, 1834,
in relation to the division of the snid debt, and of the subse
quent agreements made by the commission of ministers which
met at Bogota, the Executive Power is authorized to proceed
to convert into Venezuela's own debt the proi>ortion which
falls U} this Kepublic conformably to Article 1 of the said
convention.
'Art. 2. The debt converted into Venezuela's own debt shall
be represented by notes (bonds) authorized by the commission
of public credit, in accordance with such forms as shall be
established by the Executive Power, with all proper precau-
tions iigainst counterfeiting, and shall bear the name of Con-
solidahle Debt of Venezuvla, (J)vuda ConsoVulable de Venezuela.)
*Art. 3. From the date of the issue of the notes {bonds) re-
ferred to in the preceding article^ no others shall be admitted to
the conversion of consoUdable debt of Venezuela^ to which the
law of April 20, 18;58, relative to the public debt, refers.'
"In this state of the law, the llowlands converted their
Colombian bonds, 1830, into 'Venezuela's own debt* and ob-
tained the bills in controversy.
"Before this last act they, it would seem, preferred their
Colombian bonds, which were a charge against Xew Granada
and Ecuador as well as Venezuela, to the consolidated 'treas-
ury bills' of the latter authorized by previous legislation. But
now, the pledge being iidded that the consolidable securities
should be confined to the Colombian domestic debt falling to
Venezuela, the extent of which was known, their own holding
constituting a good part thereof, they made the change.
"There was subsetjuent legislation on the subject, radically
changing the law of this i)erio(l, which need not be traced
particularly. The principle, however, of maintaining the con-
solidated debt as a sinking fund, in one form or another, was
kept up with interrnptions.
"Three changes in tiie law will be generally noted:
"1. The price at which the consolidable bonds could be ex-
changed for the consoli<lated was soon arbitrarily iixe<l. At
lirst, three of the formei* were reijuired to be surrendered for
one of the latter; and at last, 1S()3, live for one.
"2. New loans and other forms of indebtedness to a large
BOND CASEd. 3639
amount, iu excess of tbe ori^nal Goloiubiau conversioD, were
added to tbe consolidable debt of Venezuela and thus made
convertible into the consolidated debt, and they wete made
exchangeable on better terms than the consolidable bills of
1H39 — a part being convertible peso for peso. The interest and
redemption fund annually appropriated was not, after 1852,
kept at ten pei: cent of the sinking fund.
*• The option of the holder of these (1839) consolidable secu-
rities to convert or not as he chose into consolidated debt,
under the law of 1838 quoted, and reenacted in 1843, was
finally taken away in 1865, when he was required to convert
at 20 cents on the dollar. By executive decree, July 1, 1865,
it was provided :
" *The republic will not recognize as its debt any bills, secu-
rities to bearer, or evidences of any kind whatsoever unless the
same shall have been presented on or before the date fixed'
[which was December 31, 1865, as to this class of debt] *nor
shall any bills, securities to bearer, or other evidences of
indebtedness be converted into consolidated debt which are
presented for conversion after the date designated by the
preceding article.'
"This time was subsequently extended to April 30, 1866.
"The owners of these 366 bonds never exercised the option
or yielded to the requirement of conversion. The securities
stand as they did on the day of their issue save the official
indorsement of their genuineness made in pursuance of law
in 1859.
"The question is, under this state of fact, What are the
rights of the parties?
"Under the constitution of 1830 (Title 14, § 14), the Vene-
zuelan Congress had power 'to contract debts on the credit of
the state,' and such was its duty in respect of the Colombian
indebtedness assigned to Venezuela under the treaty of 1834.
There is no question, therefore, as to the validity of the legis-
lation under which these bonds were issued, as there is none
:is to their bona fides. There is no doubt either that this legis-
lation entered into and formed a part of the contract with the
takers of the securities as fully as if engraved on the bills and
in terms made a part thereof. But the contract was mutual.
in justice it bound the government as well as the bill holder.
Holders were given the right to exchange their bills into con-
solidated debt at the market value, and thus put themselves
iu the line of certain, regular interest payment and the ulti-
r
3640 INTERNATIONAL ARBITRATIONS.
mate discharge of the principal. It could be exercised at any
time *at the will of the holders,' * while the classes of inter-
national debt existed,' of which these bills were a part. This
was the contract.
"The act of 1838 and that of 1839 bein^ on the same subject
are to be taken together as constituting one law, in so far as
they are consistent with each other. The latter maybe regarded
as an amendment of or addition to the former, and at points
of variance it will of course prevail. Article 16, above quoted,
not being inconsistent with the later act, was in force when
the Ilowlands obtained their securities and was, as it were,
impressed on them.
"It provides two things: 1st, Holders of Colombian securi-
ties, ^ who shall not convert them in conformity with this decree
shall preserve the rights which they have ac(iuired in respect
t'^ the manner and terms of payment.' 2d. ' Those who request
and obtain the conversion will have no other rights than those
which this law confirms in articles 4 and 10.'
"There are two ^conversions' contemplated by Hhis law,'
to wit: Conversion of ^consolidated or consolidable debt of
Colombia into consolidated debt of Venezuela,' and ' conversion
of the debt of Colombia into the debt of Venezuela.' While
the Howlands may not possibly have literally made their
exchange 'in conformity with this dceree^^ yet they did so in
substantial conformitv thereto, although under the act of 1839.
And taking the term in its wider sense, they, in making their
'conversion,' voluntarily shut themselves up to the sinking
fund or 'auction' mode of payment. And such would seem
from the letter of their agent, Mr. John M. Foster, to the
American minister at Caracas in 1855, to have been their actual
understanding. For the complaint then was not of non-
payment, but of failure on the part of the Venezuelan Govern-
ment to carry out in good faith the sinking fund law. Had
that been done — had the law, as it stood in 1839, been fairly
administered — the claimants would have no right to look to
other source of payment. But the difficulty is that was not
done. The contract was not ful tilled by Venezuela. The law
was greatly moditied to their prejudice and in violation of the
understanding embodied in the legislation of 1838-39, under
which they acted. When the means of payment to which they
had agreed to look was tiius taken away or materially impaired,
what in jnstice became their rights f They had exchanged
iBOND CASES. S641
their Colombian bills for these bonds redeemable according to
a prescribed method on the faith that such method would be
faithfully regarded and carried out.
*' It seems to us there can be but one answer to this question,
namely: At the impairment, the debt as it then was became
due and payable. The government having disregarded and
jmt out of the question the execution of the contract as to the
terms and manner of payment, the holders became thereby
absolved from it.
"Wouhl anyone for a moment say that when by the contract
the Rowlands were given the right at will tx> exchange their
bills into consolidated debt at the best rate the market would
allow, it was not an impairment of that right arbitrarily to fix
a less advantagecms price at which the exchange should be
madef Could it be claimed that when the law of 1839, forming
a part of the contract, provided that no other notes or bonds
than the Colombian indebtedness therein referred to 'shall be
admitted to the conversion of consolidable debt of Venezuela,'
the admission thereto of large amounts of other bonds and
subsequently accruing debts of the republic, and on greatly
better terms of exchange at that, was not an impairment of
this source of i)aymentf
"Was it not violative of their rights, in respect of payment,
to take away from them the ()i)tion aforesaid, given in the
original legislation, and compel them to invest in the consoli-
dated debt at five bonds for one, at the penalty of forfeiting
their whole claim !
'* These questions answer themselves. Debts can not be paid
by acts of Congress. This is not a case of ])ankruptcy. There
is no ditterence in principle between discharging a part of a
debt by legislative decree and wiping out the whole of it by
the same means, as there is none between i)aring oft' and
diminishing the value of an obligation by degrees, in one way
and another, until that value is destroyed, and out-and out
«lestruction at once. If there be any ditterence it is in favor
of the latter, as a (^uick death is preferable to torture.
*' Under the scheme provided in tiie legislation of 18t'5tS-39 it
would seem tiiis class of secui ities advam^^d in valiie until 1852,
when the consolidable debt was i educed to some 'M)0,i)0{) pesoit,
two-thirds of which face value the Howlands held. Had the
laws not been altered, to the prejudice of the holders, it appears
not unlikely that those who deterred the exercise of their option,
f
3642 INTERNATIONAL ARBITRATIONS.
as did tlie IIowlaDds, woald have in due time and long ere this
seen their securities reach par, they having gradually gone up
from 1839, as the evidence discloses, under the then faithful
administration of the law, reaching 50 in 1852.
^^The Howlands are the original takers of the bills in con-
troversy. Were not such their situation, their rights under
the treaty might be different. Had they bought the bills in
the market they might occupy no more favorable position here
than would the seller.
"Under such circumstances what does justice require at our
hands!
"There seems but one answer: allowance of the claim.
. "On the question of interest a majority of the commission,
under the discretion given by the convention in that regard, are
of opinion that substantial justice will be done if allowance be
made from the date of the very material impairment of their
rights by Venezuela by the increase of the consolidable debt
in 1853, the original claimants having in 1855 expressed them-
selves as satistied with the adniiiiistration of the sinking fund
before that date.
"The entry may, therefore, be for the face of the bills with
5 per cent interest from April 26, 1853, to September 2, 1890,
inclusive, counting the peso at 75 cents gold coin of the United
States."
Findlay, commissioner, on jurisdiction:
opimonof Mr. ,, j^ .^ ^^^^ j.^^, ^j. ^^^^ United States and the
Findlay.
respective States composing that Union that
neither the sovereignty of the federation nor of any of its
constituent parts can be brought into court at the suit of a
private individual without its consent, and in giving this con-
sent the sovereignty is tit liberty to prescribe the conditions
under which the suit shall be instituted and conducted. It is
also the law of the United States that the sovereign of another
country can not be sued in its courts by its citizens nor sub
jected to judicial process by attaclnnent or other proceeding to
enforce an appearance. This law was laid down by the Su-
preme Court in the letwiing case of Cohens r. Virginia, in 6 W.
p. 2G4, and has been repeated and reailirmed since in a multi-
tude of decisions, both State and national. (Joseph I). Beers,
&c. r. State of Arkansas, and notes, L. C. P. Co. book 15, p.
991.) It has been carried so far indeed that no judgment can
be rendered against the United States f(»r balance found due
a defendant in set off. (Reeside v. Walker, 11 11. 272.)
boKd cAsfis. 3643
"This principle of immunity from suit applies to every sov-
ereign power without regard to the form of tbe government, as it
is held to be essential to the common defence and general wel-
fare, as without its protection government would be disabled
from performing the various duties for which it was created.
As before observed, it applies to suits against foreign sover-
eigns and prohibits the seizure of property within the domestic
jurisdiction for the purpose of facilitating such procedures.
(Vavasour v. Crupp, 9 Ch. Div. 351; The Parlement Beige,
5 Prob. Div. 197; The Exchange v. McFaddon, 7 Cr. 116;
U. S. V. Lee, 106 U. S. 196.)
*'It is believed there is no exception to this rule, which
is manifestly founded in the very conception of a sovereign
power, but the voluntary departures from its enforcement are
numerous; and most, if not all, civilized states recognize the
necessity for establishing some judicial means by which errors
in administration may be corrected and wrongs remedied of
which the state has been the cause and the citizen the victim.
Hence, courts of claims of one kind or another, some with a
limited and others with a more enlarged jurisdiction, have
been established in which the individual may seek redress
against the sovereign and obtain relief by the same methods
as practiced in the ordinary tribunals of justice. The great
question that confronts us on the threshold of this case is:
Whether by the use of the terms under which this commission
has been created it was the intention of the United States to
demand and Venezuela to assent to a submission of a portion of
her public debt to the decision of this body as one of the claims
agreed to be referred within the clear intent and purview of the
treaty! It will be observed, by the express language of the
treaty, that all claims, without limitation or qualification, are
within the terms of the submission, the only proviso being that
they shall be claims of citizens of the United States against
the Government of Venezuela, and that they shall have been
presented in the mode and by the time prescribed. Giving full
and unrestrained efl'ect to this sweeping provision, it would be
impossible to exclude any claim of any kind, whether affecting
the public debt or not, provided the claim, both in origin and
presentation, had the required national status.
"This limitation, however, it will be observed, would neces-
sarily confine the allowance of such a claim to persons who
were citizens of the United States when the obligations were
incurred, or who now hold them in virtue of representation
3644 INTERNATIONAL ARBITRATION^.
of such persons; and, in consequence, the danger of letting in
by assignment or transfer the bulk of the outstanding debt
would be avoided. There is not much aid then, by way of
construction, to be derived from the general and comprehensive
chara<;ter of the t^rms used as suggestive in themselves of
some implied or latent restriction; for, while the terms are
broad enough to include claims of every kind, the right to en-
force them is confined to the only class of persons intended to
be benefited, to wit, citizens of the United States. It is to be
observed, too, that this claim was presented to the old com-
mission and dismissed because it represented 'consolidated
debt,' but the integrity of the claim was in nowise to be afl'ected
or invalidated by such action. (See .hmrnal of Proceedings,
p. 114.)
"The joint resolution of 188,'^, which provided for a reopen-
ing of the old <*laims and the creation of a new commission,
was i)assed. as its recitals show, not at the instance of Vene-
zuela only, but of citizens of the United States also who felt
themselves aggrieved by the action of the old commission in
dismissing or refusing to entertain their claims. Indeed, the
evidence siiows that the most active promoter of the legisla-
tion necessary for a rehearing was the gentlenmn who has
argue<l this case in i)art for the claimants and who appears to
have been the draftsman of the Joint resolution in which this
convention originated. There were, in fact, two active, pow-
erful, and cooperating interests at work in accomplishing this
result. On the one side was Venezuela complaining that the
former awards were tainted with fraud and should be set
aside, and on the other were citizens of the United States
alleging that in the eagerness to pass certain chiims the old
commission Ibrgot or overlooked its duty toward others equally,
l)erhaj)s more, meritorious; an<l as the result of the Joint pres-
sure of these rei)rcsentations Congress was finally induced to
adopt the rcsoluticm referred to.
"These facts, of course, were well known to both the United
States and Venezuela when tlic convention of ISSowas negoti-
ated, and in view of these facts — that is. that this claim had
been presented to the old commission and rejected, and that
this rejection was among other causes which led to the crea-
tion of the new commission — are we Justified, notwithstanding
the magnitude of the claim and its somewhat novel character,
in saying that it was not the intention to include it within the
BOl^D CASES. 3645
terms of a submissiou which refers all claims without any res-
ervatiou or limitation whatever!
**If such is the conclusion, it can only be because the case
itself does not show a claim within the meaning of that term,
and this we will examine for a moment.
'' The case rests upon the i)resentation of 366 of the bonds
or due bills of Venezuela, which were given in exchange for
106 of Colombian bonds. Tliey are all dated the 15th of Sep
tember 1839 at Caracas, and bear live per cent interest per
annum from the 1st of January 1827, and are acknowledged
in favor of the bearer, but state no date when they shall l)e-
come due and payable. Itlach one is for the sum of 500 pesos,
and their genuineness has been proved and is conceded. It
is also a concession that no part of the indebtedness repre-
sented by these bills, either principal or interest, has ever
been paid.
*' It is contended, however, by the learned counsel for Vene-
zuela, in a printed brief recently filed, that there was in fact
no obligation to pay them in money; that they were in the
nature of scrip with the privilege of being converted or funded
into a debt called the consolidated debt, and that until this
was done they were simply consolidable, and that the claim-
ants by inaction in availing themselves of the option to con-
vert have not only lost it, but Venezuela has become acquit
and released from any obligation for the debt itself.
'* On the other hand, the claimants contend that if they did
not avail themselves of the ()])tion, but chose to hold the
original evidences of this debt, submitting, in some way not
explained, to a discount of $20,000 on the exchange of Colom-
bian for Venezuelan bills under a law which at the time of the
exchange preserved whatever rights they had as holders of
said bills until the conversion was ma<le, then it matters not
what course Venezuela ])ursued subsequently with reference
to her public debt, as any refusal to pay or provide for the
satisfaction of these bills taken on the faith of existing law
would be fiat repudiation. Between these contentions the
nidical point of dei)arture seems to be whether the alleged
0))tion was an option or not. If it was an option as generally
understood, and a time had been prescribed within which it
must be exercised or held to be forfeited, nothing but the right
to convert and whatever benelits the conversion would bring
with it could have been lost. Upon what principle the failure
/
3646 IKTERNATIONAL ARBITRATIOt^ft.
to exercise the option would destroy the obligation of the
debt itself, or how that obligation is to be discharged except
by payment, compromise, or satisfaction of some kind is more
than we can perceive. Waiving this discussion, however, for
tlie moment and reverting to the ori|,dnal question, would it
not be difficult ou any interpretation, legal or conventional, to
hold that a controversy with these radical elements of differ-
ence did not constitute a claim f As originally argued at bar
the contention of Venezuela was that the claimants had not
presented their bills in twelve years, and therefore for that
period must suffer a loss of interest, but the integrity of the
debt itself was not questioned. The ground has been since
shifted and the question waived whether tliere is any debt.
^^On the concession that there was an actual subsisting debt
of a definite amount, represented by certain positive obli-
gations, the genuineness of which was admitted, one party to
the controversy would be retired and the litigious character
of the claim destroyed. The claimant then would have simply
occupied the position of one who was asking payment of a
claim which his debtor did not dispute, and some question
might have been raised as to whether there was not involved
in the very idea of claims, as submitted for our decision, the
elements of controversy and resistance. But Venezuela now
not only does not iidmit the existence of the obligation to
pay, but insists that the vinculum jurh between her and her
creditor has been destroyed; that there is no debt in fact, and
that her acknowledgment of such, in 1830, has been subse-
quently defeated by the exercise of the same sovereign will by
which it was originally declared.
"If this contention, along with the vigorous denial of the
claimants, does not constitute a claim, and a disputed claim
at that, I am at a loss to understand the meaning of language,
and shall not travel out of my way in search of precedents or
illustrations to show that such must be its significance. As a
claim, then, how shall we, bound by a solemn declaration to do
impartial justice, escape the responsibility of passing upon it,
whatever may be the amount or other issues of grave impor-
tance involved? We are aware, of course, that it is not the
X)olicy of the United IStatxis to exert diplomatic intervention in
behalf of claims purely (contractual in their character, and that
the eminent men who have filled the Department of State
from an early period have contended that such engagements^
BOND CASES. 3647
being volaiitary, should be settled between the parties withoat
the interference of the government. And so, if we were rep-
resenting or speaking simply for the policy of the United
States, as expounded by its secretaries of foreign affairs, we
would be compelled to dismiss this petition and send the
parties to Caracas. But we are sitting here under a treaty
between the two countries, the plain, the sole object of which
is to have heard and determined all claims, contractual or
otherwise, which the citizens of one country have against the
government of the other. If it be said that the policy of the
United States should be imported into the treaty for the pur-
pose of modifying express terms too general in their character,
and cutting down the claims to such as that country would
make the subject of a diplomatic representation, then the plain
answer is that all the claims of that nature would be excludeil
from our jurisdiction, and the object of the treaty as expressly
declared, which is to dispose of all claims, would be defeated.
It was just because the policy of the United States in this
respect did not permit it to urge claims of this kind outside of
the mild and inofi'ensive range of personal and unofticial good
offices that the greater necessity existed to provide for their
settlement by convention. And besides, as before shown, after
the submission of this claim to the old commission, and the
steps that were taken to open its work, and have a new adjudi-
cation, it would strain probability beyond endurance to sup-
iwse that this matter was not discussed by the plenipoten-
tiaries of the respective powers, and that the whole matter
under the comprehensive word 'claims' was referred- for set-
tlement to this commission. If the plenipotentiary appearing
for Venezuela desired that the jurisdiction of the commission
should be confined to certain classes of claims and that others
should be excluded it is probable that he made his desires
known, and that the most he could accomplish with the repre-
sentative of the United States was in getting him to agree
that all claims should go to the commission and that that
body should determine for itself the limits of its jurisdiction.
At all events that is the form in which jurisdiction is vested
in us, and, unless we deliberately shirk the discharge of a plain
duty, we see no way of escape from the conclusion that this
claim is one which we are bound to hear and consider. In this
connection, too, it is well to state what has been so forcibly
presented by other counsel for the claimants, that the history
/
3648 INTERNATIONAL ARBITRATIONS.
of previous international arbitrations between the United
States and certain of tlie South American republics and Mex-
ico demonstrates that this class of reclamations was acknowl-
edged and re<;ognized in repented instances by commissions
organized under treaties containing the same general words of
submission with which we are now dealing. For example, by
the treaty of 1857, between the United States and New Gra-
nada ^all claims' were referred to a commission, and an award
was made in favor of liobert W. Gibbs on a claim founded
upon a certiticate that a certain sum of money was due by the
Coh)mbian Government, the same certiticate, in fact, on which
this commission has also made an award in favor of the same
j)arty for the percentage of the claim to be paid by Venezuela.
*• By the treaty of 1803, between the United States and Peru,
<all claims' were submitted to a commission, and an award was
made in favor of a party on a bill of exchange made by Peru.
On November 15, 180*.), a treaty was made for the settlement
of *all pending claims' of British subjects against Venezuela,
and it appears that several awards were made for the 28J per
cent of the indebtedness of Colonjbia awarded by Venezuela.
It is true that Sir Frederick W. A. i^ruce, as the umpire of a
second commission, under a treaty between the United States
and New^ (iranada, held that it was not reasonable to supi>ose
that claims of this kind were intended to be submitted, not-
withstaniling they were included in the express terms of the
submission.
*'llis argument is based upon the proi)osition that the term
* claim' must be H;onstrued so as to con tine it to the demands
which have been made the subject of international controversy,
or which are of such a nature as, according to received inter-
national principles, would entitle them, on presentation, to the
official sui)port of the government of the complainant.'
*'The learned jurist then proceeds to state:
*''That the Government of the United States, like that of
Great Britain, has not laid down or acted upon the principle
that a citizen who holds an interest in the ])ublic debt of a for-
eign country, and who in common with tlie other shareholders
in that debt is unable to obtain paymentof what is due to him,
is entitled as of right to the same su])j)ort in recovering it as
he would be in a case where he ha<l suft'ered from a distinct
act of injustice or violence. The governujent reserves to itself,
upon special grounds, the right to determine under what con-
ditions such support shall be given, and this commission can
BOND CARES. 3649
Dot assume upon the sti eiigtii of a p^eneral term, and in tbe
absence of express lan^u<a^e to tlint effect, that the Govern-
ment of the United States intended to dele^jate to it powers
which it has not exercised itself in a matter of so much del-
icacy.'
**It will be admitted, as it has already been, that the jwlicy
of the United States with reference to the enforcement of claims
purely contractual is correctly stated; but it may be a matter
of question whether, in view of Lord Palmerston's famous cir-
cular, the view of Great Britain upon the same subject has not
been put a little too broadly. (See «also, Hall Int. Law, p. 257.)
"But concede that there is no error in the statement with
respect to either country, when enforcing its foreign policy
through the ordinary diplomatic channels, we can perceive no
reason why such a policy should not be departed from when
arbitration is adopted as the method of finally adjudicating
international claims. A claim is none the less a claim because
it originates in contract instead of tort. The refusal to i)ay an
honest claim is no less a wrong because it happens to arise
from an obligation to pay money instead of originating in vio-
lence offered to person or property. Torts, as a rule, present
more aggravated cases of injustice and affect the citizen at
XK)ints which more loudly call for redress than ordinary breaches
of contract; but after all the difference lies in degree only.
"This difference, however, has been sufficient to check, as a
rule, official demands for reclamation in the case of contracts
with the ultima ratio of reprisals and possible war projecting
its ugly shadow over the negotiation. But when two countries,
by mutual agreement, have referred the causes of reclamation
of the citizens of one against the government of the other,
without distinction as to the origin or nature of the claims, it
does not strike us that the policy of either country with refer-
ence to such claims, as illustrated by the history of diplomatic
intervention, is at all valuable for the purj)ose of explaining
what, indeed, according to our view, does not stand in need of
interpretation.
"On the contrary, if we were to call in inference to aid us
in the interpretation of an ordinary term, which explains itself,
we should say that the very fact that a government felt itselt
constrained to deny to its citizens effectual interposition in such
cases would afford strong ground for supimsing that it par-
posed to accomplish this end by the peaceable method of arbi-
i
3650 INTERNATIONAL ARBITRATIONS.
tnitioii. We know of no country which has ever held that it
was no part of its duty to its citizens to provide for redress, iu
eases of contract, although the doctrine has been held by the
United States that it would not otlicially intervene by diplo-
matic representation, with a purpose of accepting the final
responsibility for such a course. Nor do we understand this
t«) be the position of the learned gentleman whose opinion we
are now considering. He surely would not contend that a gov-
ernment owed no duty to its citizens in such cases, provided
the debtor country itself opened np the way to a settlement.
His contention is, that nothing short of express terms descrip-
tive of this class of claims, eonominej will vest the jurisdiction
to determine them, and giving the treaty a reasonable and not
a merely literal interpretation they can not be considered as
included by the general term used. But if we have the right
to say that one class of chiinis shall be excluded, why not
another! A government due bill is but a promise to pay. A
contract to build a breakwater between a government and the
citizens of another country is a promise to pay money on the
fulfilment of the contract.
''Wehavejust decided, all thecommissioners concurring, that
the commission has jurisdiction in the breakwater case, and we
have made an award agiunst Venezuela for the money remain-
ing due on the contract. Upon what principle could we justify
the taking jurisdictiim in the one case and decline it in the
other? Both, it will be observed, are contractual in their nature
and neither would have received the aid of the United States
diplomatically exerted, except in the form of good offices. The
United States would have been as much bound by this policy
to refuse its aid in the Walter claim for a breach of contract
in not paying moniy due for a breakwater as in the present
case for the due bill. If this policy, then, is to be imported into
the treaty for the purpose of excei)ting out of it matter which
falls directly within its express terms, upon what principle shall
we determine what class of contractual claims was intended
to be included? We do not understand that the United States
has refrained from pressing a claim of this kind because it was
fcmiided on the public debt of another country, but because the
claim itself was a voluntary engagement which the respective
])arties had better settle among themselves. This principle
it applied to claims of this kind of every character, big or little,
concerning public debt or otherwise.
BOND CASES. 3651
" Importing it into tbe treaty as a rule of interpretation with
the effect of overruling the express terms of the instrument,
it is obvious that the class of claims which this commission is
emxK)wered to determine would be limited to torts. But that
is the very class which governments have always beld them-
selves bound to redress through tbe ordinary diplomatic chan-
nels. Wbile, of course, tbey are included witbin tbe terms of
the submission, it would be strange indeed if the other class,
not subject to redress in tbis way, should have been excluded.
" On the whole, without protracting this discussion further,
we have come to the directly opposite conclusion from that
reached by Sir Frederick, and hold that nothing short of
words of express exclusion, at least in a treaty negotiated
under the circumstances of this one, could restrain and limit
the meaning of the plain language used."
Wm, H, ABpinwall, executor of G, G. Howland and others, v, Venezuela,
No. 18, United States and Venezuelan Claims Commission, convention of
December 5, 1885.
Mr. Andrade, commissioner on the part of Yeneznela,
^"*Mf2i2Si*° ""^ delivered tbe following dissenting opinion:
** 'There is no question, from the showing here, that,
in their origin, these bonds pertained to citizens of the United States.
The great bulk of the 5 per cent Colombian domestic debt of which they
formed a part had slh its basis indebtedness for military and other sup-
plies. In their letter to the Secretary of State, August 15, 1857, the claim-
ants speak of this kind of obligation as ''founded upon considerations of
the highest character." It seems quite probable, as claimed in the oral
argument, that the Colombian bonds were issued to the Xew York firm in
paijment for merchandise, though at what rate does not appear.' (Little,
for the conmiission, p. 318.)
"For me, on the contrary, it is most questionable that, in their origin,
these bonds did ever pertain to citizens of the United States.
"Public debt is that which the government contracts to meet the obli-
gations of the state, whenever the ordinary and permanent resources are
not sufficient, borrowing money at a fixed interest, that rises or declines
in a direct ratio with the circumstances — that is to say, the rating of
credit that the government enjoys. This means to provide for the ex-
penses of the nation constitutes what, on the subject of national finance,
is called by statesmen and economists ' public loans.' which, aside from all
considerations of an economical character that Ave have not to deal with
here, are of general use and practice among all the governments of the
world.
"Public loans are voluntary or forced ; it is unnecessary to rest to ex-
plain which constitute the former and which the latter; both define them-
selves.
"They are reimbursable within a shorter or longer period or new reim-
hursahh or perpetual. In regard to the former, the government pays the
5G27— VOL. 4 27
/
3652 INTERNATIONAL ARBITRATIONS.
iDt-erests every year, or seTiiiannnally, or quarterly, and sometimes
iiiouthly ; and it refunds the principal totally or partly, all at once, or by
succeBsive instalmeuta, at a fixed or at an undetermined time.
''The loans can silso be for a real or for a nominal capital; for a real
capital when the government recognizes itself as debtor of the amount
received, and for a nominal capital when it declares itself debtor of a sum
partially imaginary. In the former the capital is fixed, but the interest
m<ay change; in the latter, on the contrary, the interest is fixed and the
capital variable. That depends on the higher or lower rating of the credit
of the government.
^* There are loans by adjustment and loans by subscription. In the former
case the government admits the different propositions from bankers and
accepts the most favorable; in the latter ca«e it establishes the conditions
and negotiates with everybody.
'* As to the guarantee pledged to the creditor, they are divided into mort-
gaged or bonded loans and nonhonded. In the former some property of the
nation or the proceeds of some levenno are pledged; the others are raised
on no other security than the confidence in the credit of the state.
'' Respecting the origin of tlie capital realized, public loans are divided
into /o»Ti<y» (exterior) loauH, the evidences of which are issued in favor
of foreign capitalistSy and dotUetttic or internal, the evidences of which are
issued in favor of national capitalists,
''The different manners of contracting a public loan engender different
kinds of debt.
"When the government wants to provide at once for immediate needs,
and finds itself short of revenues on account of the ordinary revenues
having failed to come in in time, or on account of the expense having not
been foreseen, or it having to advance the same, it issues treasury bonds that
bear an interest and arc reimbursable within a certain time. The treasury
bonds are just like bills of exchange, payable at the treasury at their
maturity ; whence the /oaf/w*; debt, so called, because of its being transient,
occasional, and changeable. This operation of credit does not constitute
a regular loan, it being only a mere advance of funds or a simple discoont
of the proceeds of tlie public revenues.
"The consolidated debt includes all those loans definitely settled or liqui-
dated, and for the extinction and interests of which aippropriation is made
in the ordinary budget of the state. It is sometimes named inscribed debt
also, because it is inscribed or recorded in the great book of the public debt.
It is divided in redecmahle and irredetmahle.
"These are elemental scientific notions to be found in all books on polit-
ical economy.
"Colombiji, during hvr war of independence, was frequently necessi-
tated to contract debts, abroad as well as at home, for the liquiilation of
which she began to provide by a legislative act of her first congress.
" 'The general congress of Colombia, considering: the honor of the re-
public being interested in the early recognition and satisfaction of the
debts contracted for the glorious cause of independence * * • decrees
what follows :
** ' A.RT. 1. A commission is hereby created for the purpose of liquidating
the national debt.' (Decree of October 12, 1821.)
BOND GASES. 3653
''The state of the liquidation accomplisheil by the oonimiBsiou op to
1826, together with new provisions for the prosecution thereof and for the
satisfaction of the nationul debt, is shown in the law of May 22, of said
year, intended to lay the basis of the national credit :
** ' Art. 1. The Republic of Colombia recoi;uizes as national debt : 1. The
sum of 2,000,000{. sterling, which Francisco Antonio Zea contracted for
in Paris, in the name of the Republic, in March 1822, reserving the rights
that may pertain to the Republic, against all whom it may concern, in
consetiuence of the liquidation thereof ordered by the law or July 1, lo23.
2. That of 4,750,000/. sterling contracted for at Calais on April 14, 1824, by
Manuel Antonio Arrublas and Francisco Montoya. 3. The one already
examined and liquidated by the commi<»sion of litiuidators, established in
this capital, and which, up to the present, amounts to 1,181,407 pesos four
reals and seven-eighths; and that which Hball continue to be examined
and liquidated by the said Commissitm iu uniformity with the law of the
matter. 4. That of 814,710 pesos, which has been contracted, and is
unpaid, in virtue of the loan decreed by the law of July 26, 1823, year 13,
to cover the military credits of the troops and officers of Apure; and that
which is still to be contracted for the exact fulfilling of the said law.
5. The sum still owing of the 5,458,600 pe»os of military credits, which,
according to the law of September 28, 1821, year 11, has been awarded to
the servants of the Republic, and w^hat else may be hereafter awarded iu
Eursuance of the same law. 6. That which may exist unpaid of the oue-
alf of the claries of civil and military officers of the Republic, retained
in compliance with the decree of the President Liberator, of September 14,
1819, of which the Secretary of the Treasury shall give an account to the
coming Congress at its first session. 7. The amount of the third part of
the salaries of the same class of officers, retained according to th(^ law of
October 8, 1821, year 11, of which amount the Secretary of the Treasury
shall also present an account to the coming Congress at its first session.
8. The amount of the annuities allowed or transferred during the several
periods of the revolution, by the Republican Government, payable at the
several provincial treasuries of the former New Grauada and Venezuela,
aud of which the Secretary of the I'reasury Hhall render account to the
next Congress at its first session. 9. That which was acknowledged and
guaranteed by the act of independence of the Isthmus of Panama, after
being examined and liquidated by the conimisHion of li(|uidators estab-
lished in this city, aud <»f which a statement shall also be presented to the
next Congress by the Se(!retary of the Treasury .
** *Art. 2. It is declared: 1. That the fnrei<jn debt mentioned in Nos. 1 and
S of the foregoing article has earned and shall continue to cam the annual
interest of six per ct-nt sti]>ulated in the respective contracts, and shall be
redeemed as agree<l therein. 2. That those (sums) mentioned in Xos. 'i and
4 which have earned Jive per cent annual interest from the day they were
contracted, shall continue to earn the same interest hereafter; but those
included in No. 3 which have earned a lesser interest, or none at all, shall
earn in ftiture five per cent yearly from the day of their inscription in the
great book of the national del»t. 8. That those mentioned in Nos. 5, 6, 7,
8, and 9 shall earn a premium of three per cent annually from the 1st of
July of the present year of 1826.
** 'Art. 9. The Congress shall keep a great hook of the national debt, which
shall have for its heading a full copy of this law, signed by the presidents
and secretaries of both houses. (Art. 8.)
** * In that book shall be inscribed th«* 8«'veial sums, which by this law
are acknowledged as national debt, and all the inscriptions thereof shall
be signed by the presidents and secretaries of both houses. The formula
shall be as follows :
** *The Kepublio of Colombia ack now led ges as national debt ihr capital sum
of pesos, resultini from and approved by , to which the
annual interest of per cent in allowed, payable cvtry six months, out of
the funds applied thereto by the law of ,and out of such other funds as
may hereafter be applied to the said end.
j
3654 INTERNATIONAL ARBITRATIONS.
^' 'Art. 18. The conimissiun of the Dationai credit shall call in all the
obligations of the home debt emitted by the Treasury Department np to
this tiuie^ all the certijirates for military credits issued by the chief commia-
sion sitting iu this capital, and all the certificates for salaries mtkheld,
approved by the Secretary of the TreaHury ; and sealing again all these
documents in order that they may remain eancelled, in lieu thereof and in
accordance with this law, it shall emit obli«;ations with interest, payable
to bearer, showing the annual rate of interest.
'"'Art. 19. These obligatitms shall be for 25, 50, 100, 200, and 500
pesos.' • • •
'' It will be noticed from that law that Colombia, in accordance with the
economical rules generally adopted, divided her total national debt into
two principal portions — th' foreign debt entered into with foreign capitalists
(Nos. 1 and 2, art. 1) and the home or domestic debt contracted with national
citpitalists (Nos. 3 to 9) ; that the foreign debt earned six per cent annual
interest and the home debt fire per cent (Nos. 3 and 4) or three per cent
(Nos. 5 to 9) ; that all the Hiims resulting from the several sonrcee of the
national debt Hhould, after liquidation, be entered in the 'great book of
the national debt ; ' that is, consolidated under a certain formula; that obli-
gations for 5(X) pesos bearing > per cent interest could only be emitted in
lieu of the former obligations of the home debt issued by the treasury depart-
ment and of the certificates of military credits issued by the commission of
liquidators created in 1821 ; that is, in evidence of the items described in
Nos. 3 and 4 of article 1 (articles 2, 18, and 19).
''The Colombian obligations held by the Howlands in 1839 were, as it
appears, for 500;>e«o« bearing '> ptr cent interest, and therefore represented
a portion of the home debt contracted with national capitalists^ and could
not have been emitted originally in their favor, because they were foreigners,
citizens of the Knited States, not naturalized or domiciliated in Colombia;
had not had any property taken or destroyed there during the war; had
not lent any money to the government; had not been civil or military
officers of the Republic; in short, were on no account original, direct,
domestic creditors to Colombia. Nor is it probable that such obligations
were issued to the New York tirni in payment for merchandise. Colombia
did never cancel with bonds of public debt her obligations toward for-
eigners arising out of contracts for military or other supplies. She used
to pay therefor in money, bills of exchange on Europe, treasury notes,
tobacco, etc., as the majority of the commission had the opportunity to
note in the case of Idler—never in bills of public debt, either internal or
external. The words quoted from their letter to the Se<retary of State,
August 5, 1857, refer to the obligations of Venezuela towards Colombia,
not to the Colombian bonds. Those words would seem rather to exclude
the probability of their having acquired the bonds in that way, it being
inconceivable that any cause of a mercantile nature could be properly
qualified as a consideration of the highest character. Such a style is accept-
able only in connection with moral or intellectual considerations. But if
they had, they should i)rove it, because both the usages and the history
of Colombia testify against that fact. No; the bonds here contemplated
did not pt^rtain in their origin to the Howlands or to any other citizens of
the United States. They could not have come into the possession thereof
but by ]Mirchase In the market in the way of speculation. Those bonds
were not international debt.
BOND CASES. 3655
"In 1830, Colombia was severed into the three independent States of
Yeueznela, NewGranada, and Ecuador, and on December 28, 1834, a treaty
was conclnded in Bogota, between the plenipotentiaries of the governments
of Venezuela and New Granada, for the settlement of all matters concern-
ing the active and passive debt which they and that of Eonador had con-
tracted in common and recognized while forming the Republic of Colombia.
For this purpose the appointment of a commission was provided for, com-
posed of three ministers or representatives, one for each republic (art. 24).
The division was agreed to be effected in the proportion of 50 per cent
for New Granada, 28^ per cent for Venezuela, and 21^ per cent for Ecuador
(art. 1). In consequence of this agreement, Venezuela became responsible
for 570,0001. sterling out of the Paris loan of 1822 and for 1,318,395/. 158. of
the Calais or Hamburg loan of 1824, which aggregated the whole of the
foreign debt of Colombia (arts. 2 and 3).
"With respect to the domestic debt, Venezuela obligated herself to rec-
ognize as Venezuelan debt the sum of 1,977,896 pesos 37 cts. of the 3 per cent
and 1,527,416 pesos of the 5 per cent Colombian consolidated debt (Arts. 9
and 10). But the domestic debt not being yet, at that time, totally con-
solidated (Art. 14), these figures are only temporarily established here and
subject to rectification.
" 'Art. 16. As soon as the acknowledgment of the total amount of the
debt be accomplished, the commission shall proceed to divide it among the
three Republics in conformity with the basis fixed in Article 1 of this
treaty, aajudicatingt in preference to each of them, the debts pertaining to her
own citizens or inhabitants.
** 'Art. 12. After the exchange of the ratifications of the present treaty,
the Governments of the three Republics shall proceed to convert the
national consolidated debt of Colombia into debt of their own for the
sums to be respectively recognized by them, causing the Colombian bonds
to be collected and cancelled according to the rules enacted by their several
legislatures; this done, the bonds shall be remitted to the Comniission of
Ministers of the three Republics sitting at Bogota, for the verification and
destruction thereof.'
'* In pursuance of the said treaty, a law enacted by the Congress of Ven-
ezuela in May, 1837, provided :
**'Art. 3. The amount of 1,806,763 pesos, 3 per cent, consolidated debt,
and that of 1,395,091 pesos^ 5 per cent, consolidated debt ascribed to Ven-
ezuela, as per the partition agreed to in the treaty above mentioned, de-
ducting the sums redeemed from .January 1, 1830, heretofore; also the
amount of the interests due on said capitals and of those which may become
due henceforward ; thatof 456,95><, con.sol id able debt, according to the law
of May 22, 1826, which approximately will be apportioned to Venezuela on
completing the partition of this Colombian debt, deducting that which has
been redeemed since January 1, 1830, shall be paid out of the following
supplies.' * * ♦
** The foregoing law was included in that of April 26, 1838, which pro-
vided:
'"Art. 2. The amount of 1,806,763 pesos, 3 per cent, consolidated debt,
and that of 1,395,091 pMo«, 5 per cent, consolidated debt, ascribed to Ven-
ezuela, as per the partition agreed to in the treaty above mentioned, de-
ducting the sums redeemed from .laniiary 1, 1830, heretofore; also the
amount of the interests due on said cajiitals and of those which may become
due henceforward ; that of 456,958 pesoftj consolidable debt, according to the
law of May 22, 1826, which approximately will be apportioned to Venezuela
on completing the pai-tition of this Colombian debt, deducting that which
3656 INTERNATIONAL ARBITRATIONS.
bas l)een redeemed since January 1, 1830, shall be paid ont of the follow-
ing supplies:
*' * 1. The residue of tributes, taxes, and dutieH, of whatever description,
collected up to June 30, 1S31.
'"2. The residue of tlie tithes collected before the extinction of said
revenue, without prejudice to the creditors thereof, according to the pro-
visions of the law of February 12, 1836.
'* '3. The debt of the tobacco farmers, with all the actions and rights of
the said revenue.
" *4. The ])ersonaland real estate of the national patrimony, which may
be sold according to the law of the matter.
** *5. The public lands which injiy be 8<»ld in accordance to the law.
" * Art. 4. Creditors for consolidated dtht^ as contemplated by the law of May
.5, 1837y and for that which maif he consolidated in virtue of Article 6 of tl^
present law, shall be paid the annual interest of 5 p(r cent., since July 1st of
this year, every three monthtf, in the first fortnight of October, January, April,
and July.
** *Art. 5. For the payment of this intere>it and the gradual redemption of the
capital, 50,000 pesos of the recnpts of the canto m- houses shall be appropriated,
" *Art. 6. The consolidated debt of Venezuela shall not exceed the capital »um
of 500,000 pesos; but the J'Jxecutire shall issue bills on that accountt »o as to
keep the said sum always full during the existence of the kinds of internal debt
mentioned in Article :L\ which are hereby declared * consolidable,^ at the option
of the holders, under the following ruus:
" ' 1. The iioldcr or holders of the promises or documents referred to,
shall make otters to the Economic Treasury Board in Caracas, either
directly or through the Governors of their respective provinces, in order
to have their promises of consolidated or consolidable debt of Colombia
converted into consolidated debt of Venezuela.
" *2. The board shall accept in ])reference those proposals by which the
largest amount, in promises or documents of the debt of Colombia, may bo
offered, until covering the sum of 500,(K)0 ]>eso8 fixed as maximum in this
article; and shall give the Executive notice of the proposals received and
of those accepted l)y it, in order that, while receiving and cancelling the
bonds of Colombia, it may emit and sui^ender corresponding the bills of
Venezuela.
'* *3. The board shall cousider as et/ual the amounts offered by the holders,
either belonging to vapitah of any of the three kinds of debt mentioned in article
2, or to the interest due and mtt paid on the two first kinds beaHng interest.
** 'Aht. 7. For the conversion of the debt of Colombia into the debt of Vene-
zuela^ bilh of credit payable to hearer shall he issued for, from 50 to 1,000 pesos
each^ as the creditors may require them; as to amounts under 50 pesos, bills
shall be isnuedfor the total sum owing. * * *
'' *Akt. 10. After the interent being jtaid, the surplus of the amount appro-
jrriated by article/) shall be applied to the redemption of the principal. This
shall be made by dividing the amount into portionn of lO'f pesos each, which shall
be put up at public auction and nhall he given to the bidder of the largest sum in
bonds of those referred to in this law, provided that the nominal value of the
bonds offered he not inferior to thv portion proposed.
** ^\kt. 11. The auetion shall he made in the capital of the liepublic, in the
presence of the Eeonomic Treasury Hoard, within the ten days following those
appointed for the payment of interest.
"'Art. 16. The holders of documents of the debt of Colombia who mil not
convert it in conformity with this decree, shall have the rights preserved^ which
they hare acquired respecting the form and date of payment; but those who will
desire and obtain the conrersion shall not have other rights than those which this
law gives them by articles 4 and 10.
*' 'Art. 17. If in consequence of the arrangements which hare been ordered to
be carried out by the Commission of Ministers at Bogota, the amounts of each
class of debt apportioned to Venezuda he alien d, hy way of compensation of the
ones for the othei's, the Ereeutive shall admit to the conversion larger or smaller
amounts according to the alteration made in Thtgotfi.'
BOND CASES. 3657
"The law of April 26, 1838, wa« additioned by that of May 10,1839, as
follows :
** *Akt. 1. As soon as the Executive be cognizant of the total amount of
the debt of Colombia, it shall proceed, subject to the provisions of the
Treaty of December 23, 1834, concerning the partition of the said debt,
and to the snbseqnent arrangements made by the commission of ministers
sitting at Bogota, to convert into Venezuela's own debt the part appor-
tioned to this Republic according to Article 1 of the said treaty.
" *Art. 2. The debt converted into Venezuela's own debt shall be repre-
sented in bills authorized by the commission of public credit, following
the models which the Executive shall make with all proper precanttons
against counterfeiting, and shall bear the name of consolidable debt of
Venezuela,
** 'Art. 3. From the date of the issue of the bills referred to in the preceding
articUf no others shall be admitted to the conversion into consolidated debt of
Venezuela^ spoken of in the law of April 26y 1838, on public credit.*
" The law of May 10, 1839, was followed by several others relative to
the same sobject of the conversion of Colombian debt into consolidable
debt of Venezuela, and of this into consolidated debt of Veneznela,
namely :
" Law of April 11, 1840:
'* 'Art. 1. The Executive shall convert into consolidable debt of Venezu-
ela the sum of 88,745 penos, 4 cents, of 5 per cent, consolidated of Colombia,
and the sum of 53,872 pesos, 10 cents, growing out of interest acknowledged
by the said Republic, in order to comjdete therewith the amount which
has been apportioned to Venezuela in the final partition of the domestic
debt of Colombia.'
''Decree of April 28, 1840:
" 'Art. 1. In order to convert the sum mentioned in the foregoing law,
composed of 88,745 |)e«o», 4 cents, 5 per cent. Colombian consolidated debt,
and 53,872 pesos, 10 cents, interest acknowledged by the said Republic, the
holders of promises of either kind shall present them to the commission of
public credit, from the date of this decree to the 30th of June next.'
"Law of April 15, 1840:
" 'Art. 1. The Republic of Veneznela acknowledges as domestic national
debt the sum of 500,000 pesos aggregating the consolidated debt of Vene-
zuela at five per cent, interest per annum ; and, besides, that which is still
owing of the 7 ,217 ,915 peaos and 12 ctnta, capital apportioned to her by the
commission of ministers assembled at Bogota, for her 28^ p<r cent, of the
domestic debt of Colombia, in tin* following manner: 1,337,( 43 pesos and 60
cents, consolidable and consolidated debt at 5 per cent, interest per an-
num; 2,188,206 j?e»o« and 51 rents, floating debt, with its interest as stated
in the respective documents; 2,781,040 j>r»o« and 29 cents, consolidated
and consolidable debt, at 3 percent, annual interest; (>6,386/?e«<)«, 75 cents,
floating debt without interest; 764,953 pesos, 59 cents, treasury debt, with-
out interest; and 80,274 ptaos and 37 cents arising from acknowledged
interests unpaid.
** 'Art. 2. The holders of promhes of consoHdahle debt of Venezuela, oHgina-
ting i» the S and 5 per eeni eonsolidabte debt, an well as in the S and 5 per cent
consolidated debt of Colombia, shall eoutinne to earn in future the same annual
interest of S and 5 per cent, and are entitled to the interests earned bg their
credits, according to circumstances, as per the law of Mag 22, 182f).
" 'Art. 3. For the pagment of the intercuts on the consolidated debt of Vene-
zuela, and gradual redemption of the capital and interests on the whole domestic
national debt, ')0,0()0 pesos are appropriated, which shall be disposed of subject
to the rules to he given in articles 4 to 9.
" 'Art. 4. Creditors on account of the consolidated debt of Venezuela shall
be paid in money the interest of 5 per cent per annum, and tJiis payment
1
I
3658 INTERNATIONAL ARBITRATIONS.
shall be quarterly in the first fifteen days of the months of January, April,
July, and October.
** 'Art. 5. After paying the interests on the cofisolidated debt, the rest of
the sum named in article 4 shall he applied to the redemption of its capital. This
shall be effected by dividing the sum in portions of UK) pesos each^ which shall be
put up at public auction, and shall be given to the highest bidder of the bills
mentioned in this laWf provided that the nominal ralne of the capital (bills)
bidden be not below the portion proposed.
** 'Art. 9. The consolidated dt-bt of I'eneznela shall not exceed the capital of
SOOfOOO: b»t the Exenutire shall issue bills of this debt, so that the said capital
be kept always full, so long as the kinds of internal debt mentioned in article 1,
may exist, which shall be consolidated at the holder's option according to the
following rules :
*'*1. The holder or holders of the promises or documents above men-
tioned, shall make offers to the Economic Treasury Board, in Caracas,
either directly or through the governors of their respective provinces, in
order to have their debt convcTted into eonsolidated debt of Venezuela,
'* •2. The board shall accept in preference those proposals by which the largest
sum be offered in promises or documents of the consolidahle debt, until reaching
the amount of 500,000 pesos fixed as maximum in this article; and shall give
the Executive notice of the proposals received and of those accepted by it, in order
that while receiving and cancelling the oonsolidable promises, it may issue and
deliver the corresponding bills of consolidated debt.
*' '3. The board shall consider as equal sums tbos«' which maybe offered
to it by tbe holders, whether they arise from capitals of the debts men-
tioned in article 1, or from interests due, but unpaid, on those debts which
earn interest.*
"Law of April 5, 1841:
"'Art. 1. The Executive is hereby authorized to issue bonds of consolidated
debt, at 5 per cent interest per annum, for the amount of 1,S00,000 pesos, with
the object to convert thereto the oonsolidable debt under the ttrms which shall be
indicated.
" 'Akt. 3. The conversion shall be effected at the rate of 100 pesos, capital and
interest, of consolidahle debt j for 13^ pesos of consolidated debt.
*' *Akt. 4. For the payment of interest, and for the fund of redemption of the
capital sum of 1,3(X), 000 pesos consolidated debt, created by the present law, the
amount of 130,0(X) pesos, which shall be inserted in the budget of expenses, shall
be annually appropriated.
" 'Art. 7. Creditors unwilling to make the conversion of their credits under
the terms offered by this law, shall continue to enjoy the rights conceded to them
by the law of public credit.^
"Law of April 27, 1843:
"'Art. 1. The Executive is hereby authorized to continue the issue of
bonds of consolidahle debt, at 5 per <*ent aninial interest, in order to con-
vert thereto the conscdidable debt which remained unconverted on Jnne
30, 1842.
" 'Art. 3. The conversion shall be effected at the rate of 100 pesos, capital
and interest, of consoli«iablo debt, for 3.'^ of ('onsolidated debt.
** 'Art. 7. Creditors uot desirous to have their credits conv<»rted under
the t(irms offt;red by the present law, will continue to enjoy the rights
granted to theui by the law ol ])ublic credits
" 'Art. 8. The consolidal»le debt not converted by the 30th of June, 1844,
may be converted at any time in accordance with article 3 of this law;
but the interests already accrued, and those which may accrue, u]) to the
quarter year in which the conversion be etiected, shall be capitalized and
convertea as provided by the said article 3 of this law; the interests of the
debt consolidated in this wise shall not bo paid in money, but from the
quarter year following that in which the conversion be made.
'"Art. 9. Upon the total consolidahle debt being consolidated, the sum of
60,000 set aside by the law of the public a edit for the debt therMn mentioned,
and that of 130,000 pesos appropnated by the present law for the consolidahle
debt already consolidated, or which may be hereafter consolidated, shall con*
BOND CASES. 3659
stitnte a single fund for the payment of interests and redemption of the
whole 5 per cent consolidated debt; and to this latter object all the snms
shall be applied which iiiiiy gradually become unnecessary for the payment
of interests, in consequence of the progressive redemption of the capital.'
*'Law of December 12, 1856:
'^'Ajit. 1. The Republic of VenezQola recognizes as national consolidated
ilebty of bnt a single inscription, bearing the same interest of 5 per cent per
annum heretofore assigned to it: 1. The conaoUdated debt actuAUy in exist-
ence, by virtue of the laws of April 15, 1840, April 27, 1843, May 8, 1847,
ind April 18, 1853. 2. The Espera Treasury debt. * * * 3. All other
credits oriffinatiug in substitutions of the state. * « •
'* ' Akt. 3. The coHsoHdahle debtin circulation j which may hare been isevedin
accordance with the provisions of the law of April 15, 1840y of the treaty with
Spain, and of the legislative decrees of March 22, 1852, and March 10 and
May 13 and 14, 1856, may be converted at any timcy at the option of the holders,
into the consolidated debt recognized by article 1 of this decree, until, through the
conversion, the maximum of 500,000 pesos shall have been reached,
•* *Art. 4. The conversion of every 100 pesos, capital and interests, of
the consolidable debt, shall be made for 33| of the consolidated debt.
** *Art. 9. For the payment of the interest on the consolidated debt, there
shall be included annually, in the budyet of public expenses up to the sum of
£60,000 pesos.*
*'Law of June 16, 1865:
'"Art. 23. As national consolidated debt is recognized:
** * 1st. The amount of loaus made to the authorities and military chiefs
of the federation. • • ♦
*' *2d. The other securities of the internal debt which may be converted
at the will of the holders and in conformity with article 26.
"'Art. 26. The conversion into the national consolidated debt of the
different debts comprised in article 28, will be made iu the following terms:
** *5th. The treasury bills issued without interest in conformity with the
distinct regulations which have governed the matter; the consolidable debts
and • • • will be converted at the rate of 100 j}esos for 20 of the new
debt.
***Art. 28. The verification and liquidation of the bills and credits
which have to constitute the national consolidated debt, will be made
according to the following general directions:
"'2. On each bill which is received for comparison and converson will
be noted on its back, under thesealandtheHi^natureof the miniHter, that
it is registered in the respective book of certifications, and it will be re-
turned to the interested party, who will give a receipt on the counterfoil
of the certificate, returning it. The certificates returned will be cancelled
by the Secretary and will be filed iu the archives.'
''Decree of June 19, 1865:
"'Art. 8. Are subject to revision:
" * 1st. The credits which, according to the laws in force, were examined
or liquidated and hare not yet been dejinHirdy recognized.
*• * Art. 16. The bills and titles issued to hearer, which have not yet been
presented for compariHon, shall be pre8ento<l to the Hoard of Public Credit
with a statement signed by the presenter, showing distinctly the class of
each debt or title, the series, names, folio, and value of each bill, and the
number of coupons attached thereto.
** *Art. 22. The bills of public debt and the bouds of the extinguished
Bank of Venezuela are required to^iare the note of comparison and to be re-
sealed, in order to become admissible to the conversion of law.^
"Decree of July 1, 1865:
" 'Art. 1. The ludders of bonds of public debt and other titles to bearer,
to which the law of public credit refers, shall present them to the board
for their confroutatiou up to December 31 of the present 3- oar.
3660 INTERNATIONAL ARBITRATIONS.
'''Art. 5. The republic shall not recognize as her own debt the bonds
or titles to bearer, or credits of any kind whatever, which shall not be
presented up to the respective date tixed by articles 1, 2, and 3; nor ahali
he converttd into consolidated debt the bilU or titles to hearer or other dooumenU
of credit which shall be presented for conversion after the date fixed by the fore-
going article.
"Returning now to 1838, on the 15th of October, that year, the Rowlands
surrendered to the Venezuelan Government their Colombian bonds for their
conversion into Venezuelan debt, and on September 15, 1839, they received
from Venezuela the identical bonds ])roven in this onae, and from that
time the possession of the bonds and title therein have been in the claim^
ants. But this is not enough to give them the right to have their claim
taken into the cognizance of this commission. United States citizens and
corporations only may claim before it, and such citizenship must have
existed when the claim ac-erued. In the present case the claim is held to
have had its origin in the Colombian bonds converted into consolidable
debt of Venezuela, of which the Rowlands, as shown, could not be and
were not original owners, but assignees or transferees; and the conversion
did not change their cbaractei as such, nor give them better rights than
those of their assignors or transferers, who wore not citizens of the United
States. By the conversion th<' Colombian del>t was assimilated into Vene-
zuelan debt, not into United States Hubstauce. This claim does not come
within the treaty un<ler which this commission sits.
"My colleagues have been, however, of a different sentiment. Disre-
garding the nature of the transaction through which the claimants became
the first takers of the Venezuelan bonds, and thereby led, perhaps, to mis-
apprehend the native character of tliosc bonds, they have taken jurisdiction
of the case and decided it upon the assumption that the Rowlands are
therein original creditors of Venezuela. Upon this assumption, what would
have been tlie rights of the latter! No other than those which the law of
April 26, 1838, gav(^ them by articles 4 and 10; that is, to be paid every three
months the interest on their bonds, and after the interest being paid, to
have the surplus of the sum of 50,000 pesos appropriated by art. 5 applied
to the redempti(m of the principal, by dividing the surplus into portions
of 100 j)eso8 each, and i)utting up these portions at public auction (art. 16).
But these rights were understood to be given only to creditors on account
of consolidated debt of Venezuela, as explicity stated in arts. 4 and 6 of the
law of April 15, 1840, which is to be regarded as the essential one in this
respect, because it was that law which finally determined and recognized
the true amount of the 28^ units of Colombian debt convertible into
national debt of Venezuela, and precisely defined her obligations toward
her creditors on that account. The laws of 1837, 1838, and 1839 were pro-
visional regulations, adopted for the present need and intended to give
way to that of 1840; and all the provisions in this last law, as well as in
all the others following it, for the j)aynient of interests or of principals,
distinctly refer to the consolidated debt. As to the consolidable debt, its
right to be satisfied was, in possibility, capable of passing in act through
its conversion into consolidated debt, not otherwise.
" Venezuela promised to recognize as national debt of hers and to admit
the validity of the 28.^ per cent of the Colombian debt at the time of the
dissolution of Colombia, and that she did with all the forms of law, at all
BOND CASES. 3661
times, since 1837. She never promised in any form to pay, witli interest,
tbe moneys now claimed. Her consoUdahle debt bonds, like the Colombian
consolidated bonds which she had received in exchange therefor, represented
in their face a nominal , partially imaginary, not a real capital, and what she
promised in regard to them was only, first, to consolidate them by poblic
unction, and afterward to pay them also by public auction, thus attempt-
ing to secure the end, as far as possible, of paying only their real capital.
Everybody familiar with this matter of public debt knows well that such
is a usual method, with governments, of relieving themselves of that kind
of obligations. Therefore the claimants' complaint, in 1855, of failure on
the part of the Venezuelan Government to carry out in good faith the sink-
ing fund law, supposing the existence of such failure, was not a just one
on their own part, because their credit a^^ainst the government being still
consolidable, they had not any right in the sinking fund appropriated
exclusively for the consolidated debt.
** There were two conversions contemplated in the law of 1838, to wit:
Conversion of 'consolidated or cousolidable debt of Colombia' into *con-
solidable debt of Venezuela,' and conversion of * consolidable debt ' of
Venezuela into ' consolidated debt of Venezuela.' The former was optional,
the latter peremptory^ so far as regarded the right in act, to payment in any
form. The holders of documents of Colombian debt, who would not con-
vert them into 'consolidable debt of Venezuela' had the rights preserved,
which they had acquired in Colombia, respecting the form and date of
payment; those who would desire and obtain the conversion should have
no other rights than those granted to them by the said law in articles 4
and 10. The claimants ]»referred the conversion of their Colombian bonds
into ' consolidable' debt of Venezuela, and by that fact bound themselves
to convert this debt into ' consolidated ' debt of Venezuela, aa a condition
of its payment, and accepted the rights, in possibility, offered to them by
articles 4 and 10 of the law of 1838.
"This right of conversion by public auction was secured to them through
the subsequent legislation up to 1865, while from 1840 a second method of
conversion, which was optional^ was ottered to them, consisting of a kind
of private auction, in which the auctioneer was the Economic Treasury
Board of Caracas (see law of April 15, 1810, art. 9). All the holders of
consolidable debt of Venezuela chose to convert by either method, except
the claimants.
"From 1841 to 1865 it was left to the option of holders of consolidable
debt to consolidate it at the rate of 33^ per cent. All were willing to con-
solidate except the claimants.
"In 1865 the rate of conversion was reduced to 20 per cent, always op-
tionally to holders of consolidable debt; and all of these wished for the
conversion except the claimants.
" When the bills which an^ tlie subject of this claim were applied for
and received by the Howlands, Venezuela declared in the most solemn
legal form that they were not jiayable in money, but after their conversion
into consolidated deht^ she made the conversion a condition sine qua non of
their payment, and promised to }>rovide the proper means for the perform-
ance of the conditicm, which was by 'public auction.' The Howlands
accepted the bills as dischar«;cal)le peremptorily under that condition
and by this means. Such was the < ontract.
3662 INTERNATIONAL ARBITRATIONS.
"Venezuela not only provided for the conversion throogh poblicftao-
tion, bat supplied the Howlands, at their option, with other means to
facilitate it, such as private auctions, or direct arrangements at certain
fixed rates per cent. The claimants always resisted the conversion by any
means. Who broke the contract f
''My colleagues believe that the Government of Venezuela failed to
carry out in good faith the sinking-fund law (it is supposed that they
mean thereby the conversion luw), and that 'had the law, as it stood in
1839, been fairly administered, the claimants would have no right to look
to other source of payment. But the difficulty is, that was not done.
The contract was not fulfilled by Venezuela. The law was greatly modi-
fied to their prejudice aud in violation of the understanding embodied in
the legislation of 1838-39, under which they acted. When the means of
payment to which they had agreed to look was thuH taken away or mate-
rially impaired, what in justice became their rights f They had ex-
changed their Colombian bills for these bonds, redeemable according to a
prescribed method, on the faith that such method would be faithftOly
regarded and carried out.'
" My colleagues charge Venezuela with the fault, but without proving
it; they do not show where and when Avas the law modified and violated.
1 do not find the charge supported by the facts at all. In my opinion it
is only founded upon the letter of the claimauts' a;j:ent, Mr. John M. Fos-
ter, to the American minister at Caracas in 1855, aud the statement of 1857
attributed to Mr. Heury S. Sanford. But the whole body of the legisla-
tion before cited and aualyzed by nie, subsecpient to that of 1838-39, bears
testimony to the contrary.
*' In regard to the means of payment, they were not taken away or im-
paired ill anywise; but had that been done, the ri<;hts of the claimants
with respect thereto became none, absolutely none, because as already
shown, according to the understanding embodied in the legislation of
1838-39 under which they acted, the means of payment were only intended
for the consolidated debt, and the claimants' bonds were conBoUdahU debt.
''As to the method prescribed for the redemption of these bonds, on the
faith of which the claimants had exchanged their Colombian bills, it was
not less faithfully regarded by Ven<'/uela as more than sufficiently proved,
also by the testimony of said legislation. That method consisted, first,
in the consolidation by 'auction,' and then in the sinking of the debt 'so
consolidated likewise by' anrtion, which the claimants did never wish
for; they looked with all probability, but without right or justice, first
to the consolidation at par and then to the redemption nt par. According
to all the laws forming part of their contract with the (lovemment of
Venezuela, they had no other source of payment than ' consolidation,' nor
other source of consolidation than 'auction.'
"But it is said that the Rowlands were given the right at triZI to ex-
change their bills into consolidated debt at the best rate the market could
allow, and afterward a less advantageous ])rice was fixed at which the
exchange should be made. This is another assertion that I do not find
justified by the facts, and which probably rests only on some misunder-
standing of the law. For me it is evident that tliere was not such right
given them, but an obligation imposed upon tlieni, which they should ful-
fil if they wished to consolidate their bills; and the means to accomplish
BOND CASES. 3663
that obligation, whicn was public auction, was never impaired by Vene-
zuela. The rights left to their option were those of making direct offers
to the commission of public credit, and of exchanging their bills at the
rate of 33^ per cent, which, let it be said by the way, was not a less ad-
vantageous rate than that which had been obtained at the public auctign.
'' It is also contended that the law of 1839, forming a part of the contract,
provided that no other notes or bonds than the Colombian indebtedness
therein referred to should be admitted to the conversion into consolidated
debt of Venezuela, and uotwitlistanding large amounts of other bonds and
subsequently accruing debts were afterward admitted thereto, and on
greatly better terms of exchange than that, which was an impairment of
the supposed right of conversion.
''By the law of April 5, 1841, the capital of the consolidated debt was
increased from 500,0()0 pesos to 1,300,000 for the purpose of converting
thereinto the oonsolidable debt, and 130,000 pesos yearly instead of 50,000
were appropriated for the payment of interests and fiiud of redemption.
Can it be said that this was au impairment of the right of conversion f
*' The law of April 27, 1843, authorized the executive power to continue
the issue of bonds of the consolidatt'd debt bearing five per cent interest
per annum for the purpose of converting the oonsolidable debt which had
not been converted up to June 30, 1842. This law provided also that
* Upon the whole of the consolidable debt being consolidated the 50,000
pesos set aside by the law of public credit for the debt mentioned therein
and the 130,000 p^sos assigned by the present one to the consolidable debt
already converted or which may be henceforward converted into consoli-
dated debt shall constitute a single fund for the payment of the interests
and redemption of the entire consolidated debt.' * * * Here the sink-
ing fund is increased up to 130,000 pesos without admitting to consolida-
tion any other bonds or debts whatever. Was this an impairment of the
right of conversion f Was it not, on the contrary, a facilitating the exer-
cise thereof f
"The law of April 18, 1853, provided jis follows:
'"The republic acknowledges as national debt:
" ' 1. The treasury debt from July 1, 1846, to June 30, 1852. • • •
"'2. The debt weighing upon custom-houses.' * ♦ *
"The treasury and the custom-house debts are not 'consolidable' but
'floating' debt; it can not be said that this was an admission of other
debts to consolidation. Such admisaion did not affect the regular method
of converting the consolidable debt nor the fund formerly appropriated
for the satisfaction of the consolidable debt; new, especial fund was as-
signed for the payment of this debt hereby recognized. Besides, ten years
had elapsed from 1843, and the consolidable debt arising out of Colombian
debt was considered totally consolidated already and in fact was so, except
only,perhaps, that of the Howlands. Can this be named an impairment
to their right of conversion ?
"By the decree of December 12, 1856, the republic recognized as na-
tional consolidated debt : (1 ) The consolidated debt in existence at present,
according to the legislation from April 15, 1840, to April 18, 1853. (2) The
Espera treasury debt. (3) All other credits originating in substitutions
of the state for which Espera treasury debt was to be emitted. (Art. 1.)
The same law provided by art. 3 that ' the consolidable debt in circulation,
3664 INTERNATIONAL ARBITRATIONS.
which may have been issued iu accordance with the prescriptions of the
law of April 15, 1840; of the treaty with Spain, and of the legislative de-
crees of March 22, 1852, and March 10, April 24, and May 13 and 14, 1856,
may be converted at any time, ut the pleasure of the liolders, into the con-
sulidatod debt recognized by urt. 1 of this decree, until, through conversion,
the maximum of 500,000 pesos shall have been reached.' Art. 1 of this de-
cree refers to consolidated debt, not to consoUdahie debt, for the payment of
the interest of which the 8um of 250,000 j>f«o« annually was appropriated.
The kinds of consoUdable deht referred to in art. 2 were all Colombian debt
not liquidated by the commission of ministers at Bogota, and which, like
that represented by the bills of the Howlands, was entitliMl to be acknowl-
edged as national debt of Venezuela. Was this an impairment of the
claimant's right of conversion ?
"By the law of June 16, 1865, this right was also protected to them.
When and where did the iiiipairmeiit begin to exist f In my Judgment
there never existed such impairment. My coUeag^iea assume that it ex-
isted, and upon this assumption go on saying :
'* * What became of their rights?
** ' It seems to us there can be but one answer to this question, namely :
At the impairment the debt as it then was became due and payable.'
'*It seems to nie that in matter of rights and obligations there can be
no other than those strictly derived from the respective stipulations. In
the present case the stipulation was a conditional one. Venezuela prom-
ised to ])ay under the condition that the I lowlands should previously con-
vert their bills into consolidated debt. The ri^ht acquired through a
conditional sti])ulation is eventual or conse(|Ucntial to the accomplishment
of the condition; so long as this remains suspended the right resulting
therefrom is a mere hope; tatituni fipc« est debitum iri. (Justinian Inst.)
The condition of consolidating their bills, stipulated for by the Howlands
in 1839, was never fulfilled by them or by their representatives in this
claim.
'Tnder such circumstances what does justice require at the handa of
the commission ?
" In my opinion, disallowance of the claim.
*'The bills upon which this claim is based were exchanged for Colom-
bian bills bought in open market; neither they nor those for which they
were exchanged did represt^nt in their face a /fa/ value; they were con-
vertible into consolidated debt by i)ublic auction and payable by public
auction also; all the other holders of this kind of bills converted them at
about 33j^ per cent of their tace value and afterward redeemed them at
about the same rate of their consolidated value. Such bills have never
been sold in the market at a higher price than 42 per cent; this is their
actual price. My colleagues have allowed to the claimants the face value
of their bonds with five per cent interest from the date of the supposed
impairment of their right of conversion, counting the peso at 75 cents, gold
coin of the I'nitcd States. This decision seems to me a total departure
from justice."
CHAPTER LXV.
WAR CLAIMS.
1. Commencement of War.
Case of Bang! ft
"Tbe American schooner Caroline^ the prop-
hma d ®^^y ^^ ^^® claimants, was forcibly taken i>o8-
session of by a military force, under Mexican
aathorities, at a place called Berrita, the seaport of Mata-
moras, on the 20th of April 1846. She had on board a cargo
of wool and hides, bound for New York, and was then ready
to sail, having been regularly cleared from the custom house.
The pretense for this proceeding on the part of the Mexican
authorities was the advance of the American Army, under
General Taylor, from Corpus Chris ti toward the Rio Grande, •
regarded by them as the commencement of hostilities. The
vessel was retained by the military force on board of her until
the 10th of May, when, in consequence of General Taylor's
victories, she was abandoned by them, and was taken pos-
session of by her master and crew. At this time the water in
the river had fallen so low that she could not pass over the bar,
and she was detained from that cause until the 9th of July
following, having in the meantime received some injury by
grounding and beating upon the bar. The cargo was con-
siderably damaged in consequence of the leaking of the vessel
and the long time it was kept on board, not having been dis-
charged until the month of August. The claim is preferred
for indemnity for the losses thus sustained.
"At the time of the seizure of the vessel in the manner
stated war had not commenced between the two countries,
and the proceedings complained of can not be justified on the
ground of a belligerent right of Mexico.
"The board is of opinion and decides that the claim is valid,
and allows the same accordingly."
Memorial of Fredtrick Hangs atid Alfred SoiUhmayd : Opinion of Messrs.
Eyans, Smith, and Paiur, roniinissionorH, January 21, 18.")!, under the act
of Congress of March 3, 1849.
3665
3666 international arbitrations.
2. Destruction op Property by Military Operations.
Asmos O. Bredall, a citizen of the United
Caieoftlie"Lodi." States, claimed damages for the loss of the
cargo of the schooner Lodi in 1S38. The dam-
ages were alleged to have proceeded (1) from the illegal seizure
of the vessel and her cargo, and (2) from unnecessary delay
on the part of the court in which proceedings were instituted
to determine the guilt or innocence of the claimant in arriv-
ing with and unloading his vessel at a part of the coast where
there was no port of entry. To show the truth of these alle-
gations the claimant produced a copy of the proceedings of
tbe court at Matainoras before which the inquiry was con-
ducted. From this it appeared (1) that Bredall, the owner of
the schooner (Blake, master) and consignee of her cargo, sailed
from New Orleans on the liTth May 18.'W bound for the port ot
Matamoras; (2) that he had reason to believe at the time of
sailing that Brazos 8t. lago and the mouth of the Kio Grande
were blockaded by a French vessel of war, so that he might be
compelled to land his cargo on some part of the coast above or
below the entrance into Matamoras; {'^) that from conversa-
tions with a merchant of Mata'ioras, with custom-house officers
and the captain of the port at the mouth of the Rio Grande
while on a former voyage and with the Mexican minister and
the Mexican consul at New Orleans before sailing, he had
reason to believe that sucli landing of his car<jo upon the coast
would be assented to by the eollec^tor at Matamoras; (4) that
within twenty four hours after sailing the vessel began to leak,
and that she continued to leak until, fearing that if she was
delayed by the blockade he might lose his cargo, he anchored
on the sixth day of the voyage off the bar at the Nueces, but
was forced across the bar two or three days thereafter; (5) that
on the 22d of June he began to land the cargo on the bank of
the Nueces, to be transported thence to Matamoras; (6) that
two days later he set out for Matamoras on foot, a distance of
150 miles, and arriving there presented his papers at the cus-
tom-house; (7) that while he was still on his way to Matamoras
a small party of armed men, belonging to the coast guard or
troops of Mexico, arrived and captured the vessel and cargo;
(8) that this proceeding was taken in consequence of an inquiry
which had been instituted as to the intent of the vessel's arrival
and of the lauding of her cargo, Nueces being at the time a
WAR CLAIMS. 3667
" prohibited i)ort,^ declared by the laws of the Mexican Gov-
ernment to be enemy's country and to be ander martial law;
(9) that General Filisola, the commander in chief of the Mex-
ican army at Matamoras, directed the collector to investigate
the matter, but that on the i)etition of the parties interested
the inquiry was continued before General Filisola himself;
(10) that on the 5th of July the same parties filed a petition
praying to be released from any responsibility incurred by
reason of their arrival and the landing of the goods at the
Nueces; (11) tbat on the 9th of July they filed another petition,
asking permission to briug the goods into Matamoras, there to
await the final sentence of the court, alleging as a reason a
well-founded apprehension that they might be pillaged or
destroyed by the Texans or Indians, and that this permission
was granted on the 10th of July as well as an order that the
guard should assist Bredall in the transportation of the goods;
(12) that a few days later a body of Texans, numbering several
hundred, made a descent upon the cargo and began to destroy
it; (13) and that, upon receiving information of this fact, the
court dispensed with the examination of certain witnesses for
whom it was waiting, and proceeded to give a definitive sen-
tence, which declared that 'Hhe arrival and unloading" of the
schooner were ''innocent," that her "captain, passengers, crew,
and consignees" were "free from responsibility," and that such
parts of the cargo as might " escape from the enemy which
had taken possession of it" might enter the city "on the pay-
ment of the respective duties."
The following decision was rendered :
"That the seizure of the vessel and cargo at the Nueces by
the revenue or coast guard was, under the circumstances,
proper; that on the part of the court to which the parties
applied for permission to bring the goods to Matamoras there
was no delay in granting such x)ermission; that for the de
struction of the cargo by the enemies of Mexico that govern-
ment is not responsible; that the claimant had entered and
landed his goods in territory which was under martial law and
which subjected anyone found there without i)ermissiou to be
treated as an enemy, and that the release of the claimant and
his goods from such responsibility was a matter of favor; and
therefore the board decides that the claim of Asmos 0. Bredall
is not valid against the Republic of Mexico."
Opiuion of Messrs. Evans, Smith, and Paine, commissioners, February
10, 1851, under the act of Congress of March 3, 1849.
5627— VOL. 4 28
3668 INTERNATIONAL ARBITRATIONS.
" In the case of David 0. Shatturk and Dick
r :
an
Shattnok'i Caae.
son P. Shattuck v, Mexico^ No. 000, the umpire
is Dot of opinion that he would be justified in
making au award against the Mexican Government. The dam-
ages and losses alleged by the claimants seem rather to be the
result of the inevitable accidents of a state of war than to have
arisen from a wanton destruction of property by Mexican au-
thorities. It is alleged that the farm of the claimants was
damaged by Mexican soldiers passing through it and injuring
the crops, but it appears that both French and Mexican troops
were on the spot at different times and that a Mexican army
was encamped close to it for some time. Under such circum-
stances it would have been next to impossible for the general
in chief of any army to have prevented encroachments upon
private property, and this is a misfortune to which natives
were exposed as much as foreigners, with the additional disad-
vantage that the former were generally forced to take up arms.''
Thornton, umpire, convention of July 4, 1868, MS. Op. VI. 361. This case
was cited and foUowed hy Sir Edward Thornton in John Samuel v. Mexico^
No. 604, MS. Op. VI. 367.
Damage done to property in consequence of
Bigg's Case. battles being fought upon it between the bel-
ligerents is to be ascribed to the hazards of
war, and can not be made the foundation of a claim against
the government of the country in which the engagement took
place.
Thornton, umpire, William A. liiggs v. Mexico, No. 620, convention of July
4, 1868, MS. Op. VI. 371.
''The umpire considers it to be sufficiently
Baker's Case. proved that cattle, horses, mules, wagons, fod-
der, and other stores were taken by forces be-
longing to the Mexican army for their use, and that on two
occasions at least, when the number of troops was considera-
ble, they were accompanied by officers witli whom the claimant
remonstrati d against the seizure of his property, and one of
whom, Colonel Martinez, is named. On some other occasions
it is probable that stray bands of soldiers without officers and
l)erhaps of common marauders coinniitted robberies; and some
of the destruction aud losses comphiined of nnist be attributed
to the necessities and accidents of the state of war which ex-
isted. But for those articles which the troops really took for
WAR CLAIMS. 3^)69
the use of the Mexican army, and which were so ased, the um-
pire thinks that the Mexican Government is bonnd to compen-
sate the claimant.''
Thornton, umpire, Thomas C. Baker v. Mexico^ No. 696, MS. Op. VI. 396.
^^ The second claim in this order is founded
Biamenkron'i Caae. on damage done to home property belonging
to the claimant or his wife by Mexican troops
ander General Porflrio Diaz, who, in laying siege to the city of
Puebla, broke through the walls, tore up the pavements, and
otherwise damaged claimant's house. The city was held by a
foreign enemy and was besieged by native troops. Under
these circumstances and during the actual carrying on of hos-
tilities the umpire does not consider that the property of a
foreigner residing in the besieged city, more particularly when
that is real property, can be looked upon as more sacred than
that of natives. It is not shown nor has the umpire any rea-
son to believe that any indemnity was granted to native Mexi-
cans on account of similar damages; neither can the Mexican
(government be expected to compensate foreigners for damages
done to their real property by reason of actual hostilities for
the purpose of delivering the country from a foreign enemy.
Those who prefer to take up their residence in a foreign coun-
try must accept the disadvantages of that country with its
advantages, whatever they may be."
Thornton, umpire, Adolph Blumenkron v. Mexico, Nos. 329 and 795, con-
vention of July 4, 1868, US. Op. VII. 408.
" In the case of ' L, J. Dresch v. Mexico^^ No.
Dretch's Case. 655, it IS alleged that the claimant was robbed
of a rlHe and revolver and of a sum of money
by a military force under the command of General Naranjo, at
Las Piedras, in Mexico. It appears to the umpire that the
Mexican Government can not be made responsible for these
losses, because they arose during the capture of a town from
the enemy and must be attributed to the hazards of war; be-
cause it is not proved that the robbery complained of was
anything more than an act of pillage by uncontrollable sol-
diery, or was committed with the countenance of authorities or
officers. The circumstance that an officer attempted to cause
the restitution of the property is no proof that the restitution
was possible, or that the ciili)rits were not punished, or would
not have been so if they had been identilied. The umpire
3670 INTEKNATIONAI. ARBITRATIONS.
therefore feels himself obliged to award that the above-men-
tioued claim be dismissed."
Sir Edwiird Tliorntou, umpire, Febraary 4, 1876, convention of July 4,
1868, MS. Op. VI. 379.
<^ The umpire is further of opinion that the
Cold*! Case. damage done to cotton crops by cavalry pass-
ing over them in the neighborhood of the scene
of hostilities must be attributed to the hazards of war, and
for which the government of the belligerent can not be held
responsible. A certain amount of wanton mischief is f^
quently committed by soldiers, especially when they are not
highly disciplined, and this may have been the case in the
present instance; but the proportion is so small as compared
with the damage done by large bodies of troops moving over
cultivated lands, and it is so difficult to distinguish the one
from the other, that it can not generally, and certainly not in
the present instance, be taken into consideration."
Thornton, umpire, July 15, lt<76, John Cole v. Jfexioo, No. 948, conyention
of July 4, 1868, MS. Op. VI. 497.
*'In the case of Aniceto Buentello v. The
BuenteUo's Caae. United States^ No. 095, the umpire is of opinion
that when during time of war and in the
enemy's country straggling soldiers and marauders go about
robbing and. destroying property it can not be considered
that it is an injury done by the authorities of the country
whose troops are iuvailing an enemy's country. In this case
it is not shown that any officer was present at the commis-
sion of any of the oil'ences charged, nor to what regiment
they belonged, nor that they were under any control what-
ever. During war and in the enemy's country it is impos-
sible to maintain perfect discipline. Such losses are amongst
the misfortunes and hazards of war. The claimant knew that
war existed, and might easily have withdrawn his property
and retired into his own country; he preferred remaining in
Texas and running the risks of the war and has consequently
little to complain of. The umpire therefore awards that the
above-mentioned claim be dismissed."
Thornton, umpire February 21, 1876, convention of July 4, 1868, MS. Op.
VI. 318.
A claim was made for property destroyed
Xiohei'i Caae. on the occasion of the taking by the Mexican
forces of the town of Guaymas, when held by
'^he imperialists. The umpire said that neither the claimant
WAR CLAIMS. 3671
nor his witnesses pretended that they saw Mexican soldiers
destroying or sacking the property. One of the witnesses
deposed that he knew that claimant's property of all kinds
was taken away or destroyed and used by tbe Mexican
soldiers and authorities. There was no proof that the de-
struction was carried out by the orders of Mexican authorities
or even in the presence of an officer, and under these circum-
stances, and as the occurrence took place during the disorder
and tumult which accompanied tbe assault and capture of the
town occupied by the enemy, the umpire disallowed the claim.
Thornton, umpire, Joseph F, Michel v. Mexico^ No. 547, convention of July
4, 1868, MS. Op. IV. 45.
" In the case of Leopold Schlinger v. Mexicoy
SoUingei'i Caae. No. 57G, the umpire believes from the evidence
that the claimant really possessed a respect-
able store in Matamoras, and that this store was plundered
during the attack made by Carvajal upon that city in 1861;
but it is not at all clear that Carvajal was a Mexican authority,
or that he was not even fighting at the time against the con-
stituted authorities of the republic. Neither is it proved by
whom the robbery was committed — whether by troops under
his orders and control, whether any officer was present at the
time and authorized the seizure of the goods, or whether the
plundering was done by common robbers. Even if the goods
of the claimant were carried off by Carvajal's troops, he
being considered a Mexican authority and having therefore
the right and even the obligation to attack the city, the losses
can hardly be looked upon otherwise than as one of the inevi-
table hazards of war. The umpire is not justified in holding
the Mexican Government responsible for losses suffered under
such circumstances, and therefore awards that the above-men-
tioned claim be dismissed."
Thornton, umpire, November 25, 1875, Leopold Schlinger v. Mexico, No. 576,
MS. Op. VII. 595.
"It is alleged that property belonging to
Weil'iCaae. the claimant and existing in a house belong-
ing to him in Tehuantepec was plundered
and carried off by Mexican troops on the 7th of January
1867, when that town was subjected to a general sack. The
evidence is most conflicting and even the testimony of the
witnesses for the claimant is contradictory, both as to the ex-
istence of the property and as to the time at which it is sai
to have been robbed, ♦ • * i]ut even if it [the property^
3672 INTERNATIONAL ARBITRATIONS.
did exist, there is no proof whatever by whoui the property
was robbed, whether by common plunderers availing them-
selves of the commotion arising out of the war, or by soldiers,
and if by the latter whether the plundering was done by the
direction and under the control of officers. It would rather
appear, however, that the officers had lost all control over
their men and that the sacking of the town was general, natives
suffering equally with foreigners; nor is it shown that the
former were ever compensated for such losses. In such cases
the umpire is of opinion that these losses are the unhappy
consequences of a state of war, for which the Mexican Gov-
ernment can not be made responsible."
Thornton, umpire, Z^wis Weil v. Mexico^ No. 792, convention of July 4,
1868.
^'The claimant resided in Euamantla, in the
Antrey*i Caae. State of Tlaxcala, Mexico. The town was
attacked by the constitutional forces of the
government. During or immediately after the attack, the town
was pillaged by the troops and a number of houses were
sacked, amongst which was that in which the claimant live<\
But there is no proof whatever that the sacking of the town
was done by the order of or was even countenanced by the
commander of the forces. On the contrary, it is stated in
the defensive evidence, and the statement is not refuted by
the claimant, that the general in command endeavored to pre-
vent the pillage; nor is tliere any proof whatever that any
officer was present wlien the claimant's home was sacked,
and it can only be inferred that the acts complained of were
couimitted by uncontrollable soldiery, from whose violence
the natives suff'ered as much as the chiimant. In cases of this
nature the umpire considers that the 3Iexican Government
can not be called upon to grant compensation.''
Thornton, umpire, August 15, 1875, A. P. J. J n trey y . Mexico, No. 171,
convention of July 4, 1868, MS. Op. VII. 393.
In the case of Aaron Brooks v. MexicOy No.
^'^SlTale'''' -^^ (^^^- ^1'- ^^' -^^^)' ^^^' Wadsworth, the
United States commissioner, maintained that
the claimant should have an award for the losses sustained by
the appropriation of his property by the troops of Corona, and
for the wanton and unnecessary destruction of growing crops.
"1 do not know anything more criminal or more stupid," de-
clared Mr. Wadsworth, "than the wanton destruction of the
WAR CLAIMS. 3673
labors of the farmer by the military who possess the district
where he resides. This policy can only be tolerated when it
becomes necessary to lay waste a territory in order to teach an
enemy to respect the rights of peaceful, unarmed populations,
or to embarrass his retreat, or pursuit, or advance.^' Mr. Wads-
worth thought that the claimant should receive an award for
$7,000.
The umpire. Dr. Lieber, awarded him $4,000.
In the case of Oeo. Pen Johnston v. MexicOy
Johnston'! Cmo. No. 357, Sir Edward Thornton, June 27, 1874,
held:
"With regard to the damage alleged to have been done to
the crops of cotton, barley, and oats by General Corona's
forces in the spring of 1866, the umpire is of opinion that some
damage was done, but not to the extent of the claim made, which
seems to him to be exaggerated to a great degree; that as the
defendants have not proved that the requirements of war ren-
dered that damage necessary, it must therefore be considered
to have been unnecessary; and that therefore the claimants
are, on account of that damage, entitled to compensation."
"In the case of Alfred Jeannotat v. Mexico^
Jeannotat'B Case. No. 804, the umpire is of opinion, • • •
after a careful examination of the voluminous
testimony offered on both sides, that the plundering and
destruction of the property of the claimant, of which he
complains, must be classed amongst claims arising from in-
juries to persons or property by authorities of the Mexican
Republic. It is clear that General Diaz Salgadd was one of
the supporters of the revolution under the Plan of Ayutla,
which revolution led to the establisbment of the Liberal Gov-
ernment of that republic; indeed, it may certainly be said that
on the 22nd of August 1855 that government was the ' de facto '
government of the republic, as it afterwards became so * dejure^
and General Salgado was an officer of that government. It
was a force detached from the army under that general, which,
accompanied and commanded by officers, entered the Mineral
de la Luz, released the convicts from the prison, and in con-
cert with them sacked the town, including the store of the
claimant. The umpire ac([uiesces in the opinion that there
have been in the history of nations revolutions which have
been of the greatest value by contributing to the establish-
ment of liberty, and that these revolutions are frequently
accompanied by unavoidable evils; for such evils a govern-
r
3674 INTERNATIONAL ARBITRATIONS.
meiit founded upon a revolution of that nature can hardly be
held responsible; but where, as in the sacking of the Mineral
de la Luz, the mischief is unnecessary and wanton, the re-
sponsibility must be accepted. It has been alleged that in the
above-mentioned instance the sacking was done by the released
prisoners, and by a mob belonging to the population of the
town; but, if it were so, it was the military force commanded
by officers who put it in the power of the convicts and incited
the mob to assist them in their acts of violence and plunder.
It does not appear that without the arrival of the military
force, which ought to liJive prot-ected the peaceable inhabitants
of the town, there would have been any inclination to commit
sctfeh acts of violence. The uminre is therefore of opinion that
compensation is due to the claimant from the Mexican Govern-
ment.''
Thornton, umpire, April 9, 1875, convention of July 4, 1868, MS. Op. IV.
627.
Claimant's cotton and com were destroyed
Barrington'B Case, and used by troops under the command of
Colonel Para of the Mexican Government.
His fences were torn down and burnt, and other property
taken and destroyed by the same troops under the same
command. The umpire said that there seemed to have been
no necessity for this destruction of property, since there was
no proof that it was done in the i)resence of the enemy, who
at that time did not seem to have been near. For prop-
erty destroyed in this way, even though it was destroyed to
prevent its falling into the hands of the enemy, as well as for
forage taken and used by the troops, the umpire held that the
claimant was entitled to an award.
Thornton, umpire, Alexander li. Barrington v. Mexico, No. 365, conven-
tion of July 4, 1868, MS. Op. VII. 426.
" The claim embraces two different causes of
WUaon's Crm. complaint.
" The first is to obtain compensation for the
occupation of a cattle farm in the jurisdiction of San Juan de
los Kemedios, from March 1870 untilOctober 1872, by the Span-
ish authorities as a place of refuge for 200 to 250 loyal Span-
iards, and for devastation on the place during this occupation.
"The second is a claim for other damages arising out of the
invasion and destruction of liis property, i)osterior to the occu-
pation referred to in the foregoing paragraph, in consequence
WAR CLAIMS 3675
of armed conflicts between the Spanish troops and the Cuban
insurgents. The amount claimed is in all $30,000.
" With regard to the first claim, the umpire is of opinion that
the farm was occupied by Spain for military use without the
owner's consent, express or implied; that it was situated in a
district permanently occupied by the Spanish forces; that it is
usual in such cases to give compensation ; but that in the pres-
ent case, for reasons already stated,^ no claim can be admitted
on account of the use, and that the only remaining point to
be decided is, whether any compensation is due for property
destroyed. ♦ • »
" In the opinion of the umpire the dedtrm^tioh of property
which took place was the result of use, accident, and the like,
and in consequence no indemnity can be allowed in this case.
" With regard to the second claim the umpire is of opinion
that the injuries complained of were the result of military
operations in time of war, and for such injuries no indem-
nity can be claimed on the ground of international law. For
these reasons the umpire hereby decides that both claims be
dismissed.^'
Count Lewenhaupt, umpire, case of Joseph O, WiUoiif No. 121, Span.
Com. (1871), November 12, 1881.
In the case of Charles Cleworth v. The United
Cleworth'i Gate States^ No. 48, a claim was made, among other
things, for tlie value of a house destroyed in
Vicksburg by shells thrown into the city by the United States
forces during the bombardment. The commissioners said:
"The United States can not be liable for any injury caused
by the shells thrown in the attacks upon Vicksburg,"
Am. and Br. Claims Cora., treaty of May 8, 1871, Howard's Report, 22.
See also Hale's Report, 49. The same principle was applied in the case of
James Tongue v. The United States^ No. 49, to a claim for property destroyed
"by the bombardment, sacking, and pillage of Fredericksburg on the Uth,
12th, and 13th days of December 1862."
^* Several claims were brought for property
Buraingof Columbia, alleged to have been destroyed by the burn-
ing of Columbia, on the allegatior. that that
city was wantonly tired by the army of General Sherman, either
under his orders or with his consent and permission. A large
«
^ Viz, the concealment by the claimant, up to 1876, of his aUeged American
nationality.
3676 INTERNATIONAL ARBITRATIONS.
amount of testimony was taken ui>oii this subject, inclading
that of General Hampton and other Confederate officers on
the part of the claimants, and of Generals Sherman, Logan,
Howard, Woods, and other Federal officers on the part of the
United States. The claims were all disallowed, all the com-
missioners agreeing.
^' I am advised that the commissioners were unanimous in
the conclusion that the conflagration which destroyed Columbia
was not to be ascribed to either the intention or default of
either the Federal or Confederate officers. The commission did
not pass on the question whether in case the city had been
burned by the order or permission of the commanding officer
any liability for resulting losses would have existed against
the United States."
Am. and Br. ClaimB Com., Treaty of May 8, 1871, Hale's Report, 50. See
also Howard's Report, 49, 52, 409, 413, 425, 429, 433, 448.
Howard gives the following; report of the case of Brown and Sharp (Re-
port 53) in regard to the hurning of Columbia:
'' General Sherman, of tlie Ignited States army, appeared before the city
of (.'oluuibia on the 16th of February, 1865. Gen. Wade Hampt<m, of
the Confederate army, evacuated the town and retreated with his forces.
Tlie mayor of the city surrendered the same to General Stone. United
States army, on tlie morning of the 17th of Febrnary. General Stone
entered the city at 9 o'clock of the same day, and (iencrals Sheruian and
Howard did likewise a few hours later. On the same night fires broke
out in various parts of the city, which consumed the property in question.
'^Tlie defense hehl—
** 1. That had the city been burned by the express order of General
Sherman it would have been a legal act of war, as the town had been de
fended by (ien. Wade Hampton, bridges destroyed, and the United States
camp shelled.
**2. That Columbia was not burned by either General Sherman or any
of his officers.
*'3. That it was burned by the Confederates, by their having set fire to
the bridge on the Congaree Kiver, the railway de])ot, an<l to cotton which
they had piled in the streets for the purpose of lieiug burned.
**4. That some acts of ]>illage may have been couuuitted by lawless or
straggling soldiers, but that the United States generals did everything in
their power to save the city and repress disorder after the fire had broken
out.
"The claimant's counsel held —
'' 1. That although it had to bo admitted that the bridge and depot had
been fired by the Confederates, yet that said fires had been extinguished
before the general condagration took ]dace.
'* 2. That there was no cotton burning in the streets when the United
States army entered the town.
''3. That the shelling of the United States camp occurred at a place
called Granby, several miles distant from Columbia.
WAR CLAIMS. 3677
''4. That although it could not be shown that any expresR order of
General Sherman had existed for tbe burning and sacking of Colnmbia,
yet the following facts had been proven:
** (a) That it was done with his consent and connivance, and that it
was his intention to do so.
'' (6) That be had expressed snch a threat.
" (c) That his men were aware of his hostile feeling toward the city.
** (d) Tliat they were allowed to commit acts of pillage in his presence,
and in that of his officers, during tbe whole of tbe 17th of February, and
previous to tbe iire.
**(e) That he took no bona fide steps to prevent the conflagration until
it was too late.
" (/) That rockets had been sent up as a signal for the commencement
of the burning.
'' {g) That the United States soldiers were seen setting fire to buildings
and sacking houses.
''5. That, as it had been admitted by General Sherman that he had per-
fect control over his troops, the United States were liable for the bnming
and sacking of Columbia, and ought to make compensation for the losses
sustained by British subjects.
"The brief of the United Stat* s agent in the case of Brown and Sharp,
already alluded to, gives a list of all tbe claimants interested in this
question, as also the character of their claims; and the briefs of tbe
claimant's counsel, in tbe case of Sarah Watts (No. 249) r. Tbe United
States (which will be found in the Appendix, Papers Nos. 41 and 42), give
sufficient of the evi<lenre on which tbe prosecution relied.
" With the exception of tbe cases of 1). .Jacobs, who got an award of *
20,000 dollars for some tobacco, which it wa.s proven was taken away in
Unit6<l States army wagons, and that of J. Deigben, who received an
award of 1,510 dollars for a horse and buggy seized under a general order
of General Sherman, all the claims arising out of the burning, etc., of
Columbia were disallowed by the three commissioners.
"The decision must have been given on one of the following grounds:
"Either Columbia was burned by tbe Confederates or it was burned
by the unauthorized act« of the United States troops.
"A careful review of the evidence points to the latter ground as tbe
most likely one adopted by the commissioners.^'
*' Claims were made 'for property inciden-
Destraeti fPro^ ^^^^^ iuvolved in the destruction of public
^rty. stores, works, and means of transportation of
the enemy,' as in the cases of John K. Byrne,
No. 200; Charles Black, No. 128, and A. K. McMillan, No. 250.
Also, for timber felled in front of forts and batteries to give
clear range for the guns and deprive the enemy of cover, as in
tbe cases of Trook, administrator, No. ^ySj and of William B.
Booth, No. 143. For property alleged to have been wantonly
and without provocation or military necessity destroyed or
i]\jured in the enemy's country, as in tha cases of Anthony
3678 INTERNATIONAL ARBITRATIONS.
Barclay, No. 5; Godfrey Barnsley, No. 162, and in the Oolombia
cases.
<^ In these claims for destruction of property, it may be stated
generally that, with very few exceptions, and those mostly in-
significant, no awards were made against the United States.
'*• The claims for injuries by bombardment, the passage of
armies, the cutting of timber to clear away obstructions, the
erection of fortifications, etc., in the enemy's country, were all
disallowed by tbe unanimous voice of the commissioners.
^^The same may be said of the incidental destruction of inno-
cent property involved in the destruction of public stores and
works of the enemy.
^^ In several cases there were allegations of the wanton de-
struction of property by United States troops, and in some cases
satisfactory proof was made of the fact of such destruction by
soldiers without command or authority of their commanding
officers, and in defiance of orders.
" In the case of Anthony Barclay, No. 5, allegations were
made of wanton destruction of property, including valuable
furniture, china, pictures, and other works of art, books, &c.
The proof was conflicting as to whether the injuries alleged
were committed by soldiers or not; but if committed by soldiers,
it was plainly not only without authority, but in direct violation
of the orders of General Sherman. In the award made in fovor
of Mr. Barclay, I am advised that nothing was included for
property alleged to have been destroyed. ♦ • •
" The claim of Henry E. and Alfred Cox, No. 229, was for a
sawmill and its motive i)ower, machinery, etc., destroyed by
raiding parties from General Sherman's army, near Meridian,
Miss., in February 1804. The expedition by which the mill was
destroyed was sent out by General Sherman for the express
purpose of destroying the Confederate mills, supplies, railroads,
and means of transportation.
"The proofs showed that the sawmill in question had been
actually employed in the sawing of railroad ties for the Con-
federate government, and was available for this and similar
purposes.
" On the part of the defense it was claimed that the destruc-
tion was a lawful act of war.
" The claim was unanimously disallowed.
"The case of William Sraythe, No. 333, was a claim for an
iron and brass foundry, machine shop, and machinery^ fixtares.
WAR CLAIMS. 3679
supplies, etc., for same, destroyed by General Sherman in At-
lanta, after the captnre of that city, and before his advance
upon Savannah. The establishment had been employed in
the manufacture of shot, shell, and other military supplies for
the Confederate government.
<^ The claim was unanimously disallowed.
<< The case of James and Eichard Martin, No. 434, was a claim
for the value of the British ship Yorky which, in January 1862,
on a voyage in ballast from Valencia, Spain, to Lewistown,
Delaware, was alleged to have been driven ashore on the coast
of North Carolina, one of the insurrectionary States, and while
there stranded to have been destroyed by United States cruisers.
^^The proofs satisfactorily established that the vessel was
actually wrecked without intent of her officers and while on a
lawful voyage. An officer of the United States Navy, believ-
ing her to have been intentionally beached for the purpose of
running in her cargo for the use of the enemy, and that the
cargo, with the rigging and furniture of the vessel, was actu-
ally available to the rebels, boarded and burned her.
<< The commission made an award for her value in favor of
the claimants, in which all joined.
"The case of James A. Macaulay, No. 260, was a claim for
certain cotton, the cargo of the steamship Blnnche^ which was
alleged to have sailed from the port of Lavaca, Texas, in June
1862, and on her voyage to Havana to have been pursued by
the United States war vessel Montgomery ^ commanded by Lieu-
tenant Hunter, to have run aground on the coast of the island
of Cuba, and while so aground to have been boarded by the
crew of the Montgomery ^ set on fire, and, with her cargo, totally
destroyed.
" The case was unanimously disallowed for lack of proof of
the material allegations in the memorial."
Am. and Br. Claims Comiuissiou, treaty of May 8, 1871, Hale's Report, 50.
"A large number of claims was brought for
Cotton daims. cotton destroyed by the United States forces
at various points in the insurrectionary States.
Among these were the cases of Brown and Sharp, No. 33;
John Cairns & Co., No. 39, and several others, for cotton de-
stroyed at Camden, South Carolina; of George Collie, No. 458;
Christopher Atkinson, No. 380, and others, at Columbia, South
Carolina; of Samuel Hall Haddon, No. 107, in Screven County,
3680 INTERNATIONAL ARBITRATIONS.
Georgia; of Alexander Collie. No. .'570, at Oxford, Oeorgia; of
A. R. McDonald, No. 42; John C. Forbes, No. 300, and otherB,
in Arkansas and Louisiana; and various other claims for like
alleged destruction at di(!erent ])oints.
In several of these cases the proof was clear and undisputed
that the cotton was destroyed under express orders of the
commanding officers, and for the purpose of preventing it from
falling into the hands of the enemy, and of weakening the re-
sources of the enemy. In otlier cases questions of fact were in
dispute, as to the fact of destruction by the United States
forces; as to such destruction, if committeil, being by order
or authority of any competent officer; as to the title of the
claimants to the cotton alleged to have been destroyed ; and
as to whether the cotton, when destroyed, was within the
enemy's country.
" The question as to the right of the United States to de-
stroy cotton of private owners in the enemy's country was dis-
cussed by the counsel of the United States in his arguments
filed in the cases of S. H. Haddon, No. 107, and of Brown and
Sharp, No. 33; and to some extent in several other cases.
'' On the same subject arguments were filed by Her Majesty's
counsel and by counsel for the respective claimants in the
cases of S. H. Haddon, No. 107; Brown and Sharp, No. 33;
David Jacobs, No. 230; Martha M. Calderwood, No.360; John
W. Carmalt, No. 89; Wood vS: Hey worth, No. 103; James Bor-
ron, No. 144, and in some otlier cases.
" On the part of tlie United Stiites it was maintained that a
belligerent might lawfully in the enemy's country destroy any
property, public or private, the possession or control of which
might in any degree contribute to sustain the enemy and in-
crease his ability to (tarry on the war. That the occasion for
such destruction and its extent must always be left solely to the
discretion of the invading belligerent, who is of necessity the
sole judge as to the reciuirements of his military position, and
of the necessity or propriety of the destruction of property, and
of the extent to which such destruction shall be carried. That
the actual ownership of such property within the enemy's
country by tlie subjects of a neutral power, whether domiciled
within the enemy's country or not, did not relieve such prop-
erty from its liability to such destruction. That cotton in the
insurrectionary States was ])eculiarly and eminently a legiti-
mate subject for such destruction, from its relation to the
WAR CLAIMS. 3681
enemy's government, as the great staple from which were de-
rived the principal means of that government for the carrying
on of the war, which was the principal basis of its credit, the
source of its military and naval supplies, and on which it relied
to maintain its independent existence and to carry on the
war against the United States. That the control of this staple
as to production, sale, and exportation, had been, to a large ex-
tent, assumed by that government. That by the laws, military
orders, and practice of the Confederate States and their author-
ities, the destruction of cotton, whenever likely to fall into the
hands of their enemies, was enjoined and practiced, and tliat
this practice of the Confederate Government and its officers had
received the express and formal approval of the British Gov-
ernment as a legitimate practice under the laws of war.
"Proofs were made in the case of Wood and Hey worth. No.
103 (proofs for defense, pp. 16, 20, 24, 37 to 47, 51 to 65), of the
statutes of the Confederate Government in regard to their con-
trol of this staple, and in regard to its destruction when neces-
sary to prevent its falling into the hands of the enemy; of the
practice of the Confederate Government in controlling its pro
duction, sale, and exportation; of the acts of its president and
other executive and administrative officers in this regard, and
of the military orders and practice under the same for its de-
struction when exposed to capture by the enemy. Other proofs
in regard to this practice ot destruction by the Confederates
were made in the cases of James Cumming, No. 94; A. R.
McDonald, No. 42, and various other cases.
"The counsel for the United States, in his arguments, cited
the letter from Earl Russell to Lord Lyons of 31st May 1862,
from the British Blue Book relating to the United States, 1863,
vol. 2, p. 33, in which his lordship said:
"'Mr. Seward, in his conversation with your lordship, re-
ported in your dispatcli of the 16th instant, ap|)eared to attrib-
ute blame to the Confederates for destroying cotton and tobacco
in places which they evacuate on the approach of the Federal
forces. But it appears to be unreasonable to make this a mat-
ter of blame to them, for they could not be expected to leave
such articles in warehouses to bpcome prize of war, and to be
sold for the profit of the Federal Government, which would
apply the proceeds to the purchase of arms to be used against
the South.'
. " He cited also Vattel (Am. cd. of 1861). pp. 364 to 370, §§ 161
to 173; the case of Mrs. Alexander's Cotcon in the Supreme
3682 INTERNATIONAL ARBITRATIONS.
Court of the United States (2 Wall. 404, 420); and the opinion
of Sir Hugh Cairns and Mr. Keilly, given in March 1865, on
the application of the Canadian Government, and published iu
the < Saint Albans Raid,' compiled by L. N. Bei\jainin, Montreal,
1865, page 479, as follows:
"'Though in the conduct of war on land the capture by the
officers and soldiers of one belligerent of the private proi)erty
of subjects of the other belligerent is not often in ordinary
crises avowedly practiced, it is yet legitimate.'
"In the arguments filed by Uer Mtyesty's counsel in the
cases of Brown and Sharp, ^o. 33, and Samuel H. Haddon,
Ko. 107, it was maintained that, by the modem law of war and
the practice of civilized nations under it, private property of
noncombatauts on land is exempt from seizure, confiscation, or
destruction, and that this principle was fully recognized, in
theory at least, by the United States in the exercise of their
belligerent rights in the late civil war; that the article of cot-
ton, the property of noncombatauts, was no exception to this
general principle, this in fact having constituted the great
mass of the property the proceeds of which were allowed to be
recovered in the Court of Claims; that as to noncombatant
citizens the United States recognized the rule of the exemp-
tion of their private property from capture and destruction;
and that as to neutral aliens, peaceably residing in the United
States, upon the faith of treaties of amity and commerce, at
least an equally favorable doctrine must be applied; that if, in
any case, the cai)ture or destruction of such property became
a military necessity, such capture or destruction was accom-
j)anied by liability to conipenscition.
" Her Majesty's counsel cited the case of the United States
r, Klein, in the Supreme Court of the United States (13 Wall.
128); also the case of Mitchell r. Ilarmony, in the same court
(1.3 IJow. 115); also the case of U. S. Grant t\ United States
(1 C. Cls. 41); also Brown r. United States (8 Cranch, 110);
also Lawrence's Wheaton, Part IV, c. 2, pp. 586-626, 635n,
640w; Halleck, p. 540, § 12; Calvo, §§ 434, 436, 443, 444, 450;
Vattel, pp. 308-1), § 173.
"All the claims for cott^^n destroyed in the enemy's coun-
try, with a single exception (that of A. K. McDonald, No. 42),
were disallowed by the unanimous voice of the commission-
ers. ♦ • •
WAR CLAIMS. 3683
'^ In the case of A. K. McDonald, Kos. 42
JCoDonaid'B Case, and 334, the commission made an award in
favor of the claimant, Mr. Commissioner
Frazer dissenting. In that case the cotton was alleged to
have been purchased by the claimant principally in Ashley
County, Arkansas, under permits issued by the proper officers
of the United Spates Treasury, under the statutes regulating
trade in the insurrectionary States, and the regulations of the
Secretary of the Treasury made pursuant to said statutes, and
to have been destroyed in the same region by United States
forces under the command of Oeneral Osband in February,
1865. These statutes and regulations only authorized trade in
the insurrectionary States within the lines of military occu-
pancy of the United States forces; and it was contended on
the part of the claimants that the issuing of such permits by
the Treasury officers was controlling evidence that the region
covered by the permits, and within which the cotton was al-
leged to have been purchased and destroyed, was actually
within the military lines of the United States.
*' On the part of the United States it was claimed that the
evidence conclusively showed that at the time of the issuing of
the permits in question, and of the alleged purchases under the
same, as well as at the time of the alleged destruction, the re-
gion where the cotton was situated was entirely outside the
lines of military occupancy of the United States, and within
the control, civil and military, of the Confederate Government;
that the permits in question were irregularly and unlawfully
issued ; that they gave no authority to the claimant to purchase
within the district in question; that the cotton was purchased,
if at all, within the enemy's country, and under collusive ar-
rangements between the claimant and the Confederate cotton
bureau ; that the permits, even if valid when issued, affi^rded no
protection to the cotton when actually within the enemy's
lines at the time of its destruction; that the claimant, by his
unlawful dealings with the enemy, had forfeited any possible
right which he might have had under his alleged permits, and
that the claim was, to a large extent, fraudulent, both as to the
alleged purchase and destruction.
*' The entire claim of this claimant amounted, including inter-
est, to over $3,000,000. Tlie award was for the sum $197,190,
including interest. I am advised that, in the making of this
5627— VOL. 4 120
3684 INTERNATIONAL ARBITRATIONS.
award, the majority of the commission did not intend to depart
from the principle held by them in the other chiims for cotton
destroyed, bnt that they regarded the permits as controlling
evidence that the region where the (*otton was situated was
within the lines of Federal occupancy."
Am. and Br. ClaiiiiH Com., treaty of May S, 1871, Hale's Report, 52. See,
also, Howard's Report. »y, 55. 4(I9, 1 l.S, 425. 120, 433, 448.
*• The claimant alleged and brought evidence
Property destroyed ^^ prove that he was, in May, 18G2, a resident
°'r»^ c**^ * " ^^ liichmond, Virginia, and owned jointly with
his brother, James Turner, a lauded estate in
the county of New Kent, Virginia.
"That during that month the Tnited States forces, under
command of CJeneral McCIellan, then marching against Rich-
mond, seized the property of the claimant and his brother, and
occupied the dwelling and other houses upon the estate as a
hospital for a period of seven weeks, during which time stores
of medicines and other supplies had accumulated on the
premises.
"On the retreat of General McClellan's army, it being
deemed impossible to save the valuable stores so accumulated,
to prevent their falling into the hands of the enemy the resi-
dence and other houses were fired and burned to the ground.
" Tie also alleged that wood had been cut on his property
for the use of the Army in the construction of military roads,
etc., to the value* of $300. IJe alleged the entire damage to
have been $7,(500, for one-half of which only he claimed to be
allowed, his brother, the joint owner of the ])roperty with him,
being a naturalized citizen of the United States.
"The United States agent demurred to said claim on the
following grounds:
"1. That the claimant was a resident within the enemy's
country, and within the theater of actual war.
"2. That the alleged injuries to his property were the ordi-
nary casualties of war, and that the United States was not
responsible for such injuries.
" Her Mjijesty's counsel submitted that this demurrer should
be overruled on the following grounds:
"1. That if the facts of the case were |)roved the United
States were under obligations to make compensation.
"2. That the claimant was entitled to have his case deter-
mined upon its facts and merits.
"The commissioners overruled the demurrer. * * *
WAR CLAIM8. 3685
<* When the case came up on its merits the United States
agent held that the claim should be disallowed on the grounds
already enamerated in his demurrer, as also for the following
additional reasons :
<< 1. That the proofs showed that the claimant had been em-
ployed by the Confederate Government as a foreman of the
Tredegar Iron Works, where arms were manufactured for the
Confederacy, and therefore had not been neutral.
<< 2. That the destruction, &c., was a lawful act of war in an
enemy's country, for which no compensation was due.
^^3. That the claimant was not entitled to any other reme-
dies than are offered to loyal citizens of the United States re-
siding where he did, and that said citizens had no remedy for
such losses.
^<Her Miyesty's counsel held:
<^1. That this case was yirecisely within the principles settled
by the United States Court of Claims in the case of W. S.
Grant v. The United States (Court of Claims. Report, Vol. I.
p. 41.) The said judgment was expressly founded as well upon
the principles of the public law as upon that of the Constitu-
tion of the United States, which declares that private property
shall not be taken for public use without just compensation.
"The destruction of Grunt's proi)erty to prevent its falling
into the hands of the enemy was held to be a taking of private
property for public use.
"2. That the claimant was entitled to an award of 3,800
dollars currency, with interest, from June 1862.
"The three commissioners signed an award of 3,056 dollars
gold in favor of the claimant."
John Turner v. The United Stateti, No. 44, Am. and Br. Claims Com., treaty
of May 8, 1871, Howard's Report, 27, 345. Hale (Report, 55) says:
"An award was made in favor of the claimant, in which I am advised
that the majority of the comniission included an allowance in respect of
the destrnction of the house in questioi). Mr. Commissioner Frazer joined
in the award; but in his computation of amount included nothing for the
house. In no other case was any award made for the mere destrnction of
buildings within the insurrectionary territory not permanently reclaimed
to the possession of the United States; and this award was therefore an
exceptional one and not within the principle by which the commission
was goverueil in other cases.
*' The cases of A. R. McDonald, Nos. 42 and 33-4 ; of John Turner, No. 44,
and of J. & R. Martin, No. 434, were the only cases in which awards were
made for the mere destruction of property within the insurrectionary
States.''
3686 INTERNATIONAL ARBITRATIONS.
^< Thomas Sterling, a native of Scotland, al-
steriing's Case, leged and filed affidavits and correspondence
to prove—
" 1. That he emigrated to the United States in 1833.
'^2. That he remained on his farm in King and Queen
County, near Eichmond, Virginia, during the whole war.
"3. That the wagon train of General Grant's army en-
camped on said farm in April 18G4.
^^ 4. That the soldiers of said train remained in said camp
for one week, having been delayed in crossing the river at
this point, and that while so encamped they destroyed all his
growing crops, as also everything he possessed, the value of
said property being estimated by him at 6,270 dollars.
" By the documents filed with the memorial it was shown —
'' 1. That the claimant had sent this claim to Her Majesty's
minister at Washington in December 1865 for presentation to
the United States Government.
*'2. That on receipt of the same by the United States
authorities the Secretary of War detailed Captain Remington,
of the United States Army, to investigate said claim, and that
on the 17th of February 1866 the above officer represented that
the facts of the case were as alleged by the claimant, but
that the value of the property destroyed had been overesti-
mated, and that his losses did not exceed the sum of 3,865
dollars.
''3. That after the above report had been made the Judge-
Advocate-General wrote an opinion on the 17th of April 1866,
to the effect: 'That the War Department had uniformly de-
clined to entertain claims, even when presented by loyal citi-
zens, for spoliations or depredations committed by the armies
operating in the rebellious States during the war; that this
rule must be strictly adhered to until the sovereign power of
the country should by express law ordain distinctly the treat-
ment which this class of demands should receive and that
aliens had no right to complain if they were treated in the
same manner as United States citizens.'
"4. That this opinion was sent by the United States Secre-
tary of State to Iler Majesty's minister on the 7th of June
1866.
"Her Majesty's counsel argued:
"1. That the United States, through their officers, had ad-
mitted the correctness of the claim.
WAR CLAIMS. 3687
"2. That the sovereign power of the country had recognized
the obligation of such claims and had provided a remedy by
the Southern Claims Commission, so far as loyal citizens of the
United States were concerned, and that the treaty of Wash-
ington had given the commissioners of the mixed commission
jurisdiction in similar claims brought by British subjects.
"3. That aliens were not allowed to plead before the South-
ern Claims Commission.
"The defense contended:
'^1. That the claimant and his farm were within the enemy^s
country, and in the track of tlie invMing army.
"2. That no allegations of wanton injury were made or sus-
tained.
'•3. That the destruction of the claimant's property was the
ordinary and inevitable destruction consequent upon the march
of an invading army.
"4. That Congress had never recognized the obligation of
such claims, and that the Southern Claims Commission, created
under the act of March 3rd, 1871, had no jurisdiction in claims
for * property destroyed,' but only in those 'for stores and
supplies taken or furnished during the rebellion for the use of
the Army of the United States.' Also, that said commission
had no power to award any money, but was solely organized
to take proofs and report as to claims of a certain nature.
"The following is the decision of the commissioners in the
above case :
"'Washington, D. C, February 1,% 1872.
"'No. 12.— Thomas Sterling v. The United States.
"'The acts done upon which this claim is based seem to have
been the ordinary results incident to the march of an invading
army in a hostile territory, with possibly some unauthorized
acts of destruction and pillage by the soldiery, with no proof
of appropriation by the United States. Under such circum-
stances there is no ground for a valid claim against the United
States.
"'The claim is therefore disallowed.
"*L. CORTI.
"'KUS§ELL (fUENEY.
'"J. S. Frazer.
"' Commissioners.'' '■
Thomas SierHng v. The United States^ No. 12, Am. and Br. Claims Com.,
treaty of May 8, 1871, Itowjinl's Report, 29, 347, 348, a")(). Hale (Repon
45) sayB*. **In the case of Tliomas ^Sterling, No. 12, were included as
)or^dB^
3688 INTERNATIONAL ARBITKATIONS.
claims for property dcHtroyed by the United States Army in it« marches
and eucampments in tlio State of Virginia, as for horses, carriages, cattle,
hogs, flour, corn, and hacon alleged to have been takon and carried off by
the soldiers. The proofs showed nothing boyoud the disappearance of
the property in the presence of the United States Army."
In connection with the foregoing case of Sterling, Hale
(Report 44), under the heading, ''Claims for property alleged
to have been taken and appropriated by. the United States
forces within the enemy's country, not appearing to have been
taken under any regular requisition or order for military use,
ox by command of any authorized officer,'' says:
"These claims were numerous and of great variety in regard
to the circumstances of the alleged taking. It is somewhat
difficult to draw the precise line of distinction by which the
majority of the commission were guided in their decisions. It
may, perhaps, be said generally that the commission (Mr.
Commissioner Frazer dissenting) made awards in favor of the
claimant whenever it appeared by satisfactory evidence that
the property so taken was a legitimate subject of military use
and was actually applied to military uses, even though such
application was not made through the regular and ordinary
channels. On the other hand, where the property was m its
nature not a proper subject of nulitary use, or, being such,
was not applied to military use^or where the taking appeared
to be mere acts of unauthorized pillage or maraudmg, the
claims were disallowed.
''In the case of the Misses Hayes, No. 100, milliners, at
Jackson, Mississippi, a claim was made for a stock of millinery
goods and like i)roperty, alleged to have been taken by soldiers
of the I'liited States Army on the first capture of Jackson in
May 18G3. The acts complained of appeared, if committed by
the United States soldiers, to have been acts of pillage merely,
and the (;laim was unanimously disallowed.
"In the case of Michael Grace, No. K32, Elizabeth Bostock,
No. 133, Thomas McMahon, No. 130, and others, at Savannah,
being claims for property alleged to have been taken and
appropriated by United States soldiers, the same iq)peared to
have been by acts of unauthorized pillage, and were rejected.
"In the case of Bridget Lavell, No. 130, Ann O'Hara, No. 135,
William H. Bennett, No. 137, and William Cleary, No. liiiO, at
Savannah, awards were made, Mr. Commissioner Frazer dis-
senting, for i)roperty taken by the United States forces, though
without proof of the intervention of an authorized officer, the
property being in the nature of commissary's and quarter-
master's supplies, applicable to the i)roper use of the Army,
and actually, though perhaps irregularly, api)ropriated to Army
use.
"In the case of David Jacobs, No. 230, large claims were
made for watches, jewelry, silks, and other valuable goods,
WAR CLAIMS. 3689
liquors and tobacco, alleged to have been taken by General
Sherman'8 army at Colnmbia, on the capture of that city, as
well as for the destruction of other property by the burning of
that city.
<'An award was made, Mr. Commissioner Frazer dissenting,
for the tobacco taken from this claimant, on proof that it was
carried off in army wagons, tobacco being allowed as an army
ration. All the other claims for property taken from this
claimant were disallowed.
<<In the case of Watkins and Donnelly, administrators, No.
329, an award was made against the United States, in which
all the commissioners joined, for property pillaged by United
States soldiers in the night from a country store in Missouri,
a State not in insurrection, upon proof showing great neglect
of discipline on the part of Colonel Jennison, the commanding
officer, and his neglect and refusal to take any steps for the
surrender of the stolen property or the punishment of the
offenders when notified of the facts, and that a part at least
of the stolen property was then in possession of his troops."
Dr. Meng, a citizen of France, claimed com-
Dr Menff' CaT"' peusation for the destruction of two houses
and their contents at Donaldsonville, Louisi-
ana, on the west bank of the Mississippi Biver. It appeared
that during the civil war in the United States Dr. Meng re-
sided at Donaldsonville and owned the proi)erty in question;
that Admiral Farragut was then in command of the naval
forces of the United States on the lower Mississippi, and
op|)Osite to the parish in which Donaldsonville is situated;
that his transports and other vessels having been fired upon
from the banks of the river in the neighborhood of Donaldson-
ville, Admiral Farragut, believing that the town furnished a
rendezvous for the parties engaged in the attacks, determined
to destroy it; that on August 8, 18G2, in his capacity as com-
mander, he notified the residents of Donaldsonville that he
would on the day following destroy the town, and that on the
9th of August he caused fire to be set to some of the buildings,
which resulted in the destruction of a part of the town, includ-
ing the buildings owned by this memorialist, and for which he
claimed compensation.
By mutual understanding this case was placed at the head
of a class of cases which rested ui>on the same facts and
which were collectively known as the DoiiaUUonville cases.
Counsel for the memorialist in his opening brief cited the
proclamation of the President of August 16, 1861, in which he
excepted from the proclamation such parts of the States de-
3690 INTERNATIONAL ARBITRATIONS.
clared in rebellion as migbt maintain a loyal adhesion to the
Union, ^^or may be from time to time occupied and controlled
by the forces of the Ignited Suites engaged in the dispersion
of the said insurgents.-' It was claimed that at the' time of
the destruction of Donaldsonville that portion of the State of
Ix)uisiana was occupied and controlled by the forces of the
United States; and reference was made to the language of
General' Butler, as quoted in the case of the Venice^ 2 Wallace,
and to the letter of May 12, 1862, to Mr. Adams, minister at
London, in which Mr. Seward, then Secretary of State, said:
"You may now assume that the Mississippi River, in its whole
length, is restored to the Federal authority." The proclama-
tion of General Butler of November 9, 1862, was also cited, in
which he spoke of the district west of the Mississippi River as
"lately taken possession of by the United States troops." Upon
these authorities and upon oral testimony it was contended by
counsel for the claimant that Donaldsonville was within the
lines of the Army and of the territory of the United States;
that the act of Admiral Farragut in ordering the destruction
of the city was not warranted by the rules of war, nor justified
by the necessities of the situation; and that the Government
of the United States, being responsible for the acts of its offi-
cers, must make compensation to the sufferers.
The argument of counsel for the claimant
Argfument or aim- ^^^ specially directed to the support of two
I)ropositions :
** First. That Doualdsonville at the time of its destruction by Admiral
Farragut was within the Federal line.s and under Federal authority ; hence
was not in enemy territory.
*'Seeond. That trade had bc^en established betwe<»n Doualdsonville and
the city of New Orleans, and that that section of Louisiana had been
restored to all its rights under the Constitution."
The history of the controversy between the United States
and Great Britain, relating to acts of retaliation by the army
of (ireat Britain for the destruction committed by the army of
the United States in Upper Canada in the year 1S14, was re-
ferred to as sustaining the position of counsel for the claimant
that nations were liable for the destruction of property under
circumstances such as existed at Donaldsonville in 1862.
Counsel for the claimant then proceeded to say :
'^JSuch were the positions taken by the United 8tat«^s, and we think
correctly taken.
*'We may anticipate the objection counsel for the United States will
make to the introduction of this correspondence, to wit, that these cities
WAR CLAIMS. 3691
and villdj^es were not destroyed for any violation of tne rules of civilized
warfare ; that their citizens hnd not fired upon the transports or kept up
an irregular war upon the British fleet. Perhaps not. But it will he seen
that they were destroyed in retaliation for similar acts of uncivilized war-
fare on our part in Canada. Therefore, it appears that the same excuse
was offered, ' the places were humed in retaliation ; ' and that is the excuse
given by Admiral Farragut.
''As said by the Secretary of State such acta are inhuman and are not
justified by the principles and rules of civilized warfare. The authorities
all say that the destruction of towns and cities can be justified only by
the imperative necessities of war ; only where they are necessary to insure
the success of the army and become an important element in securing an
honorable peace, or where the conduct of the citizens is inexcusable and
it can not be stopped by taking possession of the place or places. Under
any other circumstances such conduct ^ is the act of a savage.'
''The testimony in these eases shows beyond a doubt that there was no
excuse for the destruction of Donaldsonville. It was shown that the firing
upon the fleet was not the work of the citizens of Donaldsonville, but that
of irresponsible guerillas whom the citizens could not control ; that the
firing was not from the city^ but from below and above the place. These
facts were fnlly and truthfully comnmnicated to Admiral Farragut. He
knew at the time that there was no enemy in Donaldsonville; that he had
complete and undisputed control of the place; could at anytime take
peaceable possession of it, and that there was no one to dispute his author-
ity. One witness swears that there was no enemy there; in fact, that
there were but two or three male citizens in the place; and yet, with the
place under his absolute control, he burnt the city for the act of a few
guerillas who were strangers to the place and without a residence or inter-
est in it.
''A more inexcusable and barbarous act was not committed during the
entire war. The city was not hostile, it was not in the hands of or under
the control of the enemy, it was declared to be within the Federal lines,
there was no occasion to bombard it to dislodge an enemy, it was disarmed
and in the hands of a few Union men and women, and there was not only
no one to dispute the authority of the United States, but the commander
of her navy was urged to take possession of the city and thus protect all
from the occasional and irregular acts of guerrillas. By the rules of war
the United States military and naval forces were bound to exercise their
authority, take possession of the place, and protect its own citizens and
alien residents residing within its territory under treaty stipulations from
the acts of freebooters and plunderers. S<» long as a district or city was
under the authority of tin* rebels, or those in arms against the United
States, the United States was not, and is not, liable for the injuries or
wrongs committed by her enemies; but the moment her authority was re-
established her liability followed, and she became responsible for the acts
of her military or naval forces. This principle was declared in Gumbo
Case (2 Knapp, 369). Tliat case involved the liability of Franco for dam-
ages done after she had retaken the Dutch West Indies from Holland, and
the Privy Council held Frances liable for all acts done after she had taken
possession. In the (;laim of Nelson, the English and American commission
held the same doctrine.
i
3692 INTERNATIONAL ARBITRATIONS.
'' It follows that aH Donaldsonville was within the Federal lines, and
nnder the control of the United States forces, they w^ere bound to protect
the citizens, and their refusal to do so was an a<^t for which the govern-
ment is liable/*
Counsel for the United States in reply cited
fT^Ui u t d ^^^ language of (ieneral liutler, as quoted in
sutes. ^**^ ^*®® ^^ ^^® Venice, in which he said, speak-
ing of the rebels: " They have retired in the
direction of Corinth, beyond Manchat Pass, and abandoned
everything in the river as far as Donaldsonville, some seventy
miles beyond New Orleans.-' As to the statement in the let-
ter of Mr. Seward to Mr. Adams, the commission was asked
to observe that the phrase ''You may now assume that the
Mississippi River, in its whole length, is restored to the Fed-
eral authority," was not even in form a declaration of the fact,
and that whatever might have been the purpose of Mr. Seward,
history justified the statement that the river was not restored
in its whole length until July 186:5, afti^r the full of Vicksburg
and Port Hudson. In further support of the position that
Donaldsonville was not within the control of the armies of
the United States in August 1862, the report of (icneral But-
ler of the 27th of October of that year was cited, in which he
said: "General Weitzel landed at Donaldsonville and took up
his line of march on Sunday, the 26th of October. About
nine miles beyond Donaldsonville he met tlie enemy in force.
A sharp engagement ensued, in which he lost eighteen killed
and sixty-eight wounded." It was contended by counsel for
the United States that the proclamation or order of General
Butler of November 9, 1862, in which he created a department
of that portion of the State of Louisiana lying west of the
Mississippi River, and declared that it had been "lately"
taken possession of by the United States trooi)s, was the first
official notice of the occupation and possession of that portion
of Louisiana in which the town of Donaldsonville was situated
which bound the United States (fovernment, and that it was
in itself conclusive proof that up to tliat time the territory
covered by the proclamation was enemy territory. As to the
oral testimony, it was contended that the individual views
and opinions of witnesses could not control the official acts of
the military and civil authorities of the country; and, conse-
quently, that Donaldsonville, in August 1862, was enemy
territory.
In refutation of the position taken by counsel for the claim-
WAR CLAIMS. 3693
ant that Admiral Farragut was not jastified by the Eules and
Articles of War and the principles of public law, in the circum-
stances then existing and known to him, in issuing the order
which in its execution caused the destruction of the town of
Donaldsonville, counsel for the United States submitted these
views to the commission:
''The destruction of Donnldsonvillo by Admiral Farragut is justified
upon two grounds: First, as ad act of retaliation, and, secondly, as a
reasonable and proper means of defense. The counsel for the claimant
assumes that the right of retaliation in war and upon the theater of actual
hostilities can not be justified by the rules of civilized war, and upon
page 10 of the claimant's brief appears this statement: 'Treating the
question as if Donaldsonville remained outside of our lines, yet the admi-
ral had no right, under international law, to bombard or burn the town
without making his government liable for the damage done/ It is unnec-
essary to characterize this statement or consider its value as a legal prop-
osition, inasmuch as it is sufficient to cite the authority of this honorable
commission in the case of Virgiuie Dutreix against the United States,
No. 524. In that case the counsel for the United States filed a demurrer,
and upon the ground that the * injuries complained of were the resnU of
the ordinary operations of war and the bombardment of an enemy's town.'
After argument the commission sustained the demurrer and disallowed
the claim. That decision was signed by all the members of the commis-
sion, and the counsel for the United States might with safety here rest
the defense. Upon pages 10, 11, and 12 of the brief of the counsel for
the memorialist, authorities are cited and quotations made from those
authorities upon the idea that they support the proposition already
quoted from the brief of the counsel for the claimant. These authorities
fail to support the position assumed. They all recognize the right of a
belligerent to punish his adversary by the bombar<lment of a town or the
destruction of private property under general orders, and not for pillage
or gain. This remark is also applicable to article 28 of the Rules and
Articles of War: 'Retaliation will never be resorted to as a measure of
mere revenge, but only as a means of protective retribution, and, more-
over, cautiously unavoidable; that is to say, retaliation shall only be
resorted to after careful inquiry into the real occasion and character of
the misdeeds that may demand retribution.' Nor is any support given
to the position of the counsel for the claimant by the correspondence
between the Government of the United States and the representatives of
Great Britain, quoted on pages 11^17 of his brief. From this correspond-
ence it appears that the British Government adopted what were called
measures of retaliation against the inhabitants of the United States for
the wanton destruction committed by their army in Upper Canada in the
year 1814, and that the United States Government complained of those
acts of retaliation; but the correspondence is conclusive to the point that
the representatives of the (ioverunient of Great Britain niaintain<'d the
right and justice of the proceeding. It is also a matter of history that no
provision was made in the treaty of i»eace for the compensation of jjersons
who suflerod by the depredations of the British forces, and no compeusa-
3694 INTERNATIONAL ARBITRATIONS.
tion was ovor ma<le to the losers from the treaHiiry of Great Britain. The
ri;^ht to destroy the property of persons residout in enemy's territory and
npon the theater of war^ and as a measure of retaliation for injaries
indicted by the army of the enemy, rests upon the rule everywhere rec-
ognized thtit the urmy and people are alike enemies, and that the entire
body politic, the army, the civil officers, and the citizens, are eacrh and all
responsible for the hostile acts of each and all.
''The counsel for the United States claims that Admiral Farragut was,
by virtue of his commission, and by the power of command vested in him,
fully authorized to judge whether the destruction of the town of Donald-
souville or a portion thereof was justiiied by the circumstances then exist-
ing and known to him, and that it is not competent for this tribunal to
now inquire whether his decision was or was not a proper decision/'
Counsel for the United States also referred to the case of
Mrs. Alexander's cotton, 2 Wallace, 419, in which the Supreme
Court of the United States said :
*'We must be governed by the principle of public law, so often
announced from this bench, as applicable alike to civil and international
wars, that all the people of each State or district in insitrrertion against the
United Statea must be regarded as enemies until, hy the action of the legislature
and executive J or otherwise, the relation is thoroughly and permanently
changed.'^
At the final hearing counsel for the United States submitted
these observations:
''The allegation in the memorial of Dr. Meng is that on the 9th of
August 1862, by the order of Admiral Farragut, who was then in command
of the naval forces on the Mississippi Kiver, between a place known as
Port Hudson and the city of New Orleans and to the open sea, certain
property in the town of Donaldsouville, on the west side of the river, was
set on lire and destroyed, and that of this property the claimant was the
owner of certain buildings, three in all, for which he claims compensation.
His citizenship in France is admitted. The State of Louisiana passed
what was called an ordinance of secession in the month of Janaary 1861,
and became one of the members of the (Confederacy, which was organized
into a government, with its capital at Montgomery, Alabama, the 22d of
February 1861. The seat of <j:overnment was afterwards removed to
Richmond, Va. On ihe 25th day of April 1802, after the occu])ation of
the islands below New Orleans, in the Gulf of Mexico, near the mouth
of the Mississippi Kiver, Admiral Farragut obtained possession of the city
of New Orleans. General Butler, who was then in command of the land
forces, arrived in New Orleans the 30th of April 1802, and the 1st of May
ho issued his jjroclamation declaring the city of New Orleans under martial
law. 1 believe that is the only proclamation relating to jurisdiction
which was issued by the general of the army or by the President of the
United States previous to the events of the 8tli and IHh of August 1862,
with which we are now dealing. What w(» havci claimed in our brief, and
what wo shall attempt to maintain here and now, is that at the time when
this destruction took place the town of Donaldsouville was of the enemy
territory. These eleven States that were organized into the so-called
WAR CLAIMS. 3695
Confederacy were recognized as a belligerent govemment, or as a
belligerent for the purposes of war, by the proclamation of the Queen of
England of the 13th of May 1861. That proclamation was followed by
the proclamation of the Emperor of France in June of the same year.
As far as those govoruments were concerned, and especially as far as the
Government of France was concerned, there was a distinct official public
recognition of the organization called the ^ Confederate States/ and an
admission of those States into the family of states, not for all purposes,
but for the purpose of war. Therefore it does not lie within the scope of
the ro&son of the case that the Government of France should deny that
at the time the proclamation was issued by the Emperor of France all this
territory was enemy country as far as the Government of the Unit^ States
was concerned.
''Next, then. President Lincoln the 16th day of August 1861, which
was nearly a year before these events took place, issued a proclamation
which did in eAect recognize these States, with certain exceptions, as a
belligerent power, and they were so treated in all our relations with
them during the existence of hostilities. In pursuance of an act of Con-
gress, to which he roferN, he says: 'I do hereby declare that the inhab-
itants of the said States of (ieorgia, South Carolina, Virginia, North Caro-
lina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and
Florida (except the inhabitants of that part of the State of Virginia lying
west of the Allegliany Mountains, and of such other parts of that State
and the other States hereinbefore named as may maintain a loyal adhesion
to the Union and the Constitution, or may be, from time to time, occupied
and controlled by the forces of the United States engaged in the disper-
sion of said insurgents), are in a state of insurrection against the United
States, and that all commercial intercourse between the same and the in-
habitants thereof, with the exceptions aforesaid, and the citizens of other
States and other parts of the United States, is unlawful, and will remain
unlawful, until such insurrection shall cease or has been suppressed.'
That proclamation, declaring these States to be in a state of insurrection
against the Government of the United States, was to operate until the
insurrection was suppressed; and the insurrection was not suppressed
until the month of April 18IJ5, when the forces of Gen. Lee surrendered
to Gen. Grant at Appomattox Court-House, in the State of Virginia. By
that proclamation Louisiana was in a state of insurrection until the sup>
pression of the rebellion in 18(>5, and during all that period it was enemy
territory by the act of the Government of the United States, enemy terri-
tory by the proclamation of the Government of Great Britain, enemy ter-
ritory by the proclamation of the Emperor of France."
Ill reply, and la support of the position
Argument in Reply, taken by counsel for the claimant, Mr. Morse,
assistant counsel for the French Kepublic,
made the foUowing statement;
**A few months after the commencement of the war Fort St. Philip and
Fort Jackson, which cj)mmaniled the entrance to the mouth of the Missis-
sippi Kiver, below New Orleans, about a distance of one hundred miles,
were captured by the Federal lleet under Admiral Farra«j:ut, and the city
of New Orleans fell into possession of the Federal Government, and re-
3696 INTERNATIONAL ARBITRATIONS.
mained so until the close of the war. With the fall of New Orleans,
practically sill thiit portion of the Mississippi River not commanded by
very formidable forts fell also into the possession of the Federal Govern-
ment, and the gunboats and transports of the Federal Government had
free passage up to a point called Port Hudson, which is about seventy
miles above Donaldsonville. and on the east or left bank of the river,
where there was quite a formidable fort, garrisoned by Confederate troops,
which for many months successfully resisted the Federal fleet and army
of occupation. But from Donaldsonville to New Orleans all the conn try
on the right and left banks of the river, which was immediately com-
manded by the guns of the Federal fleet, was in absolute possession and
control of the Federal Government. Occasionally, however, partisan
rangers or detached bodies of armed men, alleged to be Confederate sol-
diers, would come Irom the interior of the country, and, striking the roads
which followed the Mississippi River just inside of the levee, would make
attacks sometimes on the steauiboats and sometimes on the transjiorts.
Some time after the Federal occupation of the lower Mississippi by the
United States an earthwork was thrown up on the environs of Donald-
sonville, at the confluence of the bayou and the river. This was * Fort
Barrow,^ which was erected on the north and west bank of the bayou and
river, and was some time occupied by a small body of Federal troops.
The location of this earthwork, which is shown on maps filed in these
cases, was outside of the village of Donaldsonville. This fortification
was at one time named * Fort Butler.'
**The capture of New Orleans occurred late in April 1862, and the occur-
rences out of which this claim originated took plac<' on the 9th of August
of the same year. The formidable Federal fleet had been for several
montbM in undisputed possession of this portion of the river, and of course
of the territory immediately contiguous, and all this portion of Louisiana
[referring to the map] had been declared by President Lincoln as exempt
from the insurrectionary (listricts. Proclamations Aug. 16, 1861 (12 Stats,
p. 1262) and July 1, 1><62 (12 Stat«. p. 1276). When the war wim commenced
the whole State was declared in iuHurrection, but with the capture of
New Orleans and the restoration of federal jurisdiction in certain portions
of the territory, notably Ascension parish, and other parishes on both
sides of the river, those localities were declared by the proclamation of
President Lincoln not to be within the insurrectionary districts, and
therefore not likely to be treated as 'enemy territory.' As a matter of
fact, trade was uninterrupted between Donaldsonville and the city of New
Orleans. But at the same time the transports and sometimes steamboats
had been, as alleged by tln^ United States, fired upon with small-arms from
points above and below and near Donaldsonville; and the United States
has also introduced evidence that there was a baby cannon at one time at
Donaldsonville, which was discharfj^ed at a transport or a federal steam-
boat; and occasionally detachments of arme<l men would appear on
horseback and discharge a volley from small-arms at a passing transport
or federal steamer. I do not believe there is any charge or proof that
anybody was killed on st<Mimer or transport by the guns discharged either
near Donaldsonville or in the vicinity. I do not think there is any evi-
dence on this ]>oint, at least as far as 1 have read the testimony,"
WAR CLAIMS. 3697
An opinion was given by a majority of the
^ commission, Baron de Arinos and Mr. Com-
missioner Aldis, disallowing the claim, in these words:
Washington, Nov. J2dy 1883.
"All the property described in the memorial, except item
13, for three horses, saddles, and bridles, was destroyed or
burnt by the bombardment or burning of Donaldsonville by
Admiral Farragut, on the 9th of August 1862.
"The question whether the Government of the United States
is bound to make compensation to the claimant for his property
so destroyed or burnt has been very fully discussed by counsel
and carefully considered by the commission.
"We deem it unnecessary to go into a detail of the facts
which we consider as proved by the evidence, or of our views
of the principles of international law and of the laws of war
applicable to the facts, and which determine our decision.
" We deem it sufficient to say that the acts of bombardment
and burning by Admiral Farragut were lawful and justifiable
acts of war, caused by the firing of the Confederate military
forces, with the complicity of the inhabitants of Donaldson-
ville, upon the transports of the United States passing upon
the river, and that the Government of the United States is
not bound to make compensation for the damage caused by
such burning and bombardment.
"As to the item 13, for the horses, saddles, and bridles, the
only evidence to prove the taking by the United States mili-
tary authorities is the statement of the claimant (p. 17) : He is
asked : ' What became of the horses!' He answers: *The sol-
diers took them; the same soldiers.' As these soldiers came
from and returned to the ship in a skiff, it is difficult to believe
that they took the horses. The proof of the taking of the
horses is not sufficient to justify an allowance."
Donaldsonville cases (Dr. Denis Mernj v. United States, No. 567), Bout-
weirs Report, 159: Commission under the convention between the United
States and Franco of January 15, 1880.
From the foregoing decision, M. Lefaivre delivered
Dissenting Opinion, the following dissent:
** The commissioner for France regrets not to be able
to join in the decision of his colleagues in the case of Denis Meng.
''He bases liis dissenting opinion upon the following reasons:
**The destruction of property situated at Donaldsonville, on the banks
of the Mississippi Kiver, was ordered on the 9th of August 1862, by Admi-
ral Farragut, as appears from his own declarations, in view of securing his
transports against the firing from the opposite side, which wiis attributed
(and all inquiries seem to justify this imputation) to Texan guerrillas.
"Arguments and briefs have been submitted to the commission for the
purpose of justifying the destruction ordered by Admiral Farragut, and
the ciunmission readily recognized in this officer the right of securing his
3698 INTERNATIONAL ARBITRATIONS.
communications by all means consecrated by custom and tbe immemorial
traditions of war.
''Haviu<^ disclaimed any appreciation or censure respecting this meas-
ure in itself, the majority of the connnission also admitted tbe following
principle: 'That tbe destruction of DonaldsonvHle might have been
caused by military necessities without the United States Government
being exempted from liability for ulterior indemnities to the victlmR—
that is, to the injured property owners— provided the destruction of their
dwellings could not be considered iis an act of retaliation prompted by
their complicity in attacks upon the Federal transports.'
'^The question being thus reduced to these terms, it remained only to
consider whether the proofs and testimony showed with sufficient clear-
ness an active participation of the population of Doualdsonville in the
incriminated acts of hostility.
"In the judgment of the commissioner for France, not only the few
inhabitants left by the war at Doualdsonville had not taken any part in
the attacks incriminated by Admiral Farragut, but, on -the contrary, it ia
proved that they made the most meritorious etlbrts with the Confederate
officers and tbe Confederate governor of th<^ State of Louisiana to prevent
the continuance of the attacks, and even appealed to Admiral Farragat
for eflfective aid and protection against the excursions of the gnerriUas.
Imismuch as the French commissioner dilVers so fundamentally from this
decision of the commission, he considers it useless to enter into a hypo>
thetical discussion as to how Dr. Meng's horses were taken from him.
"In the judgment of the French commissioner the majority of the
commission have not substantiated their charge of complicity by the tes-
timony of a single witness, and he has sought in vain through the volu-
minous records of the Doualdsonville cases for any proof in support of
this grave accusation, which is brought forward as the justihcation of the
deliberate burning of the houses of unoffending foreign citizens.
'*Tho principal witnesses who have testified in these cases on behalf of
the United States and of tlie claimants are IJcynaud, Uollin, Uercegeay,
Rodrigue, Guigon, F<^vrier, Billon, Kougeau, and Claverie. They all de-
clare, from personal knowledge, that the citizens of Doualdsonville took
no part whatever in the tiring upon the Federal transports. It appears
from their testimony in claims numbered 112, 184, 331, 496, and 567, among
others, that the firing was done exclusively bj' a band of Texas guerrillas,
who were encamped several miles away from the town ; that Commodore
Farragut's threat to burn the town caused great anxiety and consterna-
tion; that he wjis appealed to for protection by the mayor and the few
remaining inhabitants, who told him that they could not control the
guerrillas, though they would do what they could to prevent them from
continuing these attacks (p. 112 of No. imj; 41, 40, IKJ, and 129 of No. 331;
29of No.112; 43ofNo.3r); 51ofNo.567); that the captain of the gnerrillas
and the governor of Louisiana were successively implored to take into
consideration their danger and defenseless situation, and to cause tbe
liriug from the banks of the Mississippi to be stopped. In a word, it is
clear beyond controversy that everything that could possibly be done by
the few male adults of Doualdsonville, who appear to have been mostly
old men and foreigners, exemj)t from Confederate conscription, was hoii-
WAR CLAIMS. 3699
estly and in good faith done by them to put a Htop to the hostile acts of
the Texas guerrillas and to demonstrate their innocence and their non-
complicity in these acts.
" The people of Donaldsonville were completely at the mercy of Com-
modore Farragut and the vessels of his tleet. The town lay between New
Orleans and Baton Konge, at both of which places the Federals had a
large military force. No Confederate troops were in the vicinity, except
Captain McWhorter's handful of Texas guerrillas. The business relations
of the town were with New Orleans, and the inhabitants had every motive
of interest and reason to placate the Federal authorities. Is it reason-
able to suppose that they deliberately invited the destruction of their
homes by futile attempts to retard the advance of the Federal fleet f
Coald there be anything more ludicrous and pitiful than this attempt in
picture to us a handful of decrepit Louisianians and foreign tradesmen
arming themselves with rusty shotguns and muskets and marching down
in solid array to the river front to repel, at tbe risk of the destruction of
their town if they failed, the advance of the man-of-war Brooklyn, a
screw steamer of 2,070 registered tonnage, carrying 26 guns, and one of
the largest vessels of the ITnited States Navy?"
Kemy Jardel, a Fn^ncb citizen, who resided
JardersCase. at Doiialdsouville, Louisiana, in June 1863,
claimed compensation for a dwelling house
and bakery, which were destroyed by fire set to certain build-
ings in Donaldsonville, by order of Major BuUen, on the
29tb day of that month. It api)eared that after the attack ou
tbe transports of tbe United States, which gave rise to tbe
destruction of property in Donaldsonville in August 1862, by
order of Admiral Farragut, as reported in tbe case of Dr.
Meng, tbe United States military authorities caused a small
fort to be erected above Donaldsonville, at tbe junction of tbe
Bayou Lafourche with tbe Mississippi River, with a view to
tbe protection of the transports on tbe river against attacks
from tbe town. On June 28, 1803, this fort was occupied by
a force of about 180 men, commanded by Major BuUen, of
the Twentyeigbtb Maine Volunteers, wben, at about 1 o'clock
in tbe morning, it was attacked by a body of Confederate
troops, estimated at from 2,000 to 5,000. Tbe principal attack
was from the open country on tbe west and northwest sides
of the fort, but tbe tiring was begun from behind buildings in
Donaldsonville, on the opposite side of tbe Bayou Lafourche.
Tbe contest lasted till daylight, when tbe Jittacking party
retired to a distance beyond tbe reach of the guns in the
fort. Major BuUen, ap])reliending a se(^ond attack, sent notice
to the inhabitants of Donaldsonville that he should destroy
5027— VOL. i ;U)
37W INTERNATIONAL ARBITRATIONS.
all tbe bnildiiiKA in the town within range of the fort, and on
the morning of tlie 21»th a party wa» sent across the bayon to
set fire to buildings in the vicinity. Many were destroyed, and
among them the dwelling house and bakery of the memorialist.
Counsel for the Ifnited States maintained
v^'^ttM.tm. ^**^^ ^^^ destruction of the property was a
.justifiable act of war: that it took place npoii
the theater of war and in the t4Tritory of the enemy. He
laid down the following proi>osition : Where two nations are
at war, and the theater of war is upon the territory of one of
the tjelligerents. and the belligerent upon the defensive, in
actual battle, without having given special authority for the
destruction of the particular property, either by specifying
that projiert}' or by specifying a class to which it belongs,
destroys the property of its own citizens or of alien residents,
that government is not liable for the destruction; but if, in
preparation for the })attle, it orders the destruction of a class
of proiKjrty, in which is the ])roperty of A, or it orders the
destruction of the proi»erty of A, whether it be a month be-
fore a battle or a day before a battle, or if, during the
battle, it orders for any particular i)urpose the destruction of
])articular pro]»erty of its own citizens, it is liable for the value
of the i>roi)erty so destroyed. If, however, an army is engaged
in operations upon the territory of the belligerent no liability
of that sort arises. Everybody in tliat country is an enemy,
and whether the occui)yin<:: army destroys property by specific
declaration or whether it destroys ])roperty in actual hostili-
ties it is alike free from all liability.
(>)uns<*l for the French Republic contended,
rgumen 0 unse .^^ reply tliat the conclusion reached by the
for France. , . .
di|)lomatic aj^ents of the two governments
in the Chonrreau case ' excluded all (tonsideration of the
(luestion whether Dcmaldsonville was within the enemy's ter-
ritory or not, and tliat the destruction of the property of the
inhabitants of Donaldsonville after tlie battle was an nnjusti-
llahle act, for which the (lovernnient of the United States was
responsible.
A majority of the commission, Baron de
Award. Arinos and (Commissioner Aldis, delivered,
November 2, 18S;$, the following opinion:
** Without considering in detail the evidence in this and the
'Supra, H. 111.").
WAR CLAIMS. 3701
similar cases and tUe fiicts proved thereby or stating the
principles of international law and of the laws of war appli-
cable to such facts and which determine our decision, we
deem it sufficient to say that the destruction and burning of
the dwelling house, bakery, and outbuildings of the claimant
in Donaldsonville, on or about the 28th of June A. D. 1863, by
the United States military forces under Major Bullen, then in
command of Fort Butler, was a lawful and justifiable act of
war; and that the Oovernment of the CJnited States is not
bound to make compensation for the damage caused thereby.
" The claim is therefore disallowed."
M. Lefaivre dissented, on the following
Diiientmff Opinion. ,
* *^ grounds:
** This destruction took place after the battle of the 27th and 28th of
Jnne (nij^ht of the 27th and moruiug of the 28th), during which Fort
Batler*8 garrison victoriously repulsed an attack of the Confederates. So
this property was not destroyed under the pressure and for the immediate
necessities of actual battle, it was but a strategic measure, taken delib-
erately and ill a period of relative tranquillity; it was an extension of the
military zone for the purpose of facilitating the accuracy of the firing, or
in order to be able to discover more easily a future attack of the enemy.
According to the unanimous opinion of international writers and con-
gresseS; and to the jurisprudence adopted by the commission itself, such a
measnre creates for the injured proprietors not participating in the battle
(*for the innocent sufferers') a right to indemnity.
" In order to refuse Jardel the benefit of this principle, it should be
shown that the inhabitants of Donaldsonville took part in the battle of
the 27th of June, and thus justified the retaliation of the garrison, or that
his house (Jardel's) was completely destroyed during the battle, either by
the bombardment of the fort or by tire. None of these points appear in the
evidence or testimony.
" 1st. The only cause of grievance of the officers and soldiers of Fort
Bntler against the inhabitants of Donaldsonville were their sympathies
for the cause of the Confederates and the insulting remarks, uttered prin-
cipally by women, when the patrol passed by. But none of them were
proved to have taken an active part in the battle. This view can be estab-
lished with entire certainty.
*'2d. The testimony of many Federal soldiers and officers shows that no
house in Donaldsonville was destroyed during the battle prior to the sys-
tematic destruction of the 29th of Juno. * It was existing houses and not
ruins which were destroyed.' Admitting even the fact that a certain num-
ber may have been damaged by jirojectiles during the battle, this partial
destruction gives the military authorities by no means the right to after-
ward destroy a lot of buildings without indemnity. The amount of these
previous losses has not ev<*n been estimated. We can only guess at their
amount, and, in absence of ))ositive proofs, it seems strange that the bene-
fit of the uncertainty should enure to those who destroyed the property
rather than to the innocent victims of the war. A contrary tendency pre-
vails to*day in intt^rnational settlements. The commissioner on behalf of
I
3702 INTERNATIONAL ARBITRATIONS.
tho French rSoverninent rogrots that the commission, by itn docisiun, did
not a^ree to thiH pro^essive tendency of inteniationul rij^hts.''
liemy Jardel v. United States, No, IWS, Houtwell's Iteport, 174 : Commis-
sion nnder the convention between the Vuited States and France of Janu
ary 15, 1880.
Virgiiiie Dutrioux, a citizen of France, was
Datrieox's Case, the owner of two lioases in Oliarleston, South
Oarolina. During the bombardment of that
city by the forcies of the United States these houses were
struck by sliells and either destroyed or injured materially,
for which the memorialist claimed compensation in the sum of
$6,000, Viiou this statement of facts counsel for the United
States interposed a demurrer on the ground that ''the injuries
complained of were the result of the ordinary operations of
war and the bombardment of an enemy's town." It was ad-
mitted in the opening brief of counsel for the claimant that,
"viewed from the standpoint of international law, • ♦ ♦
there was no remedy for the destruction by a belligerent,
through the ordinary operations of war, of the property of
a loyal citizen or an alien lying within the field of the war."
By Article IV. of the convention, however, the commissioners
were reciuired to make solemn declaration that they would
"impartially and carefully examine and decide, to the best
of their judgment and according to public law, justice, and
equity, without fear, favor, or aft'ection, all claims within the
descrii)tion and true meaning of Articles 1. and II. which shall
be laid before them on the part of the governments of the
United States and of France, iesi)ectively." And counsel for
the memorialist claimed that "public law" was distinguishable
from "international law," and that it was the intention of the
two governments that all (Miuitable claims on the part of the
citizens of either against the other should be recognized by the
commission.
Counsel for the United States contended that the words
"public law-' were ecjuivalent to the words "international law;"
that the commission was authorized to allow such claims only as
were recognized by international law, and that the destruc-
tion of the i)roperty of persons, resident in the theater of
war, by the necessary movements and acts of the belligerents
was not the subject of compensation. Counsel for the United
States referred to the pro(!eedings of the British and American
Claims Commission under the Treaty of Washington, and espe-
cially to the case of Cleworth, in which the commissioners said :
WAR CLAIMS. 3703
"The United States can not be liable for any injury caused by
the shells thrown in the attacks upon Vicksburg,"
On behalf of the claimant it was said by counsel:
*' Some of these claims, it is conceded, will be allowed. But howf Cau
it be claimed that the conyeution intended to abrogate ' the common law
of war' as to certain classes of claims and leave it in force as tq others f
If that was the intention, why was it not expressed? Why leave it to the
commission to conjecture what classes of claims not tenable under * the
common law of war' should and what classes of such claims should not be
held to be within the intent of the convention! The convention is the
most liberal ever adopted; it gives the commission jurisdiction in case of
all injuries, without qualification, arising out of acts committed by the
authorities of the respective governments during the certain periods speci-
fied and within the territorial limits designated. If injuries arising from
the ordinary operations of war, though such operations were had by the au-
thorities of government, had been intended to be excluded, why was not a
provision to that effect inserted in the convention ? There was no such
intention ; the injuries of which each government complained to the other
arose almost entirely out of acts done in the ordinary operations of war;
acts for the damages arising from which the i>olitical departments of the
respective governments, in the absence of conventiaiif would not and could
not demand redress. It was to remedy the injuries thus done that the
enlightened parties to the convention, in the broad, civilized spirit of the
day, agreed to forego setting up the narrow, jealous objections which ear-
lier and less advanced ages would have sanctioned as justifiable obstacles
in the way of common justice; the 'enlightenment' of each party in the
premises being, however, chiefly due to the potent existence of counter-
claims."
In reply counsel for the United States maintained that " all
agreements and contracts are entered into with the law of the
land in view, and are governed by it. All treaties are made
subject to the principles of public law as they exist at the date
of the treaty, and if it be desired to introduce a new and hith-
erto unrecognized principle an explicit statement to that ett'ect
must be made and incorporated in the instrument."
The demurrer was sustained and the claim was disallowed.
Virginie Dutrieux y. United States, No. 524, Boutwell's Report, 157: Com-
mission under the convention between the United States and France of
January 15, 1880.
William Ogden Giles, an American citizen,
Giles's Case. was the owner of a factory situated at Pantin,
between the walls and the outer fortili cat ions
of the city of Paris. The factory was erected in 1S69 for the
purpose of carrying on the business of preserving wood for
railroad ties. In 1870, during the siege of Paris by the Ger-
mans, the factory with its contents was destroyed, for which
3704 INTKRNATIONAL ARBITRATIONS.
Giles claimed compensation in the sum of 52,722 francs and 80
centimes. By tlie evidence it appeared that during the siege
of Paris the property of Giles was injured and portions of it
taken by franc tireurs, the gnard-nationale, and marauders.
Following this partial destruction of the property, an order
was given by General Trochu for the evacuation of what was
called the '*zone militaire," in which the factory of Giles was
situated. This order was dated the 8th of September 1870.
The 10th of September, two days afterward, the Maniteur
UniverHcl announced the destruction of the buildings in the
''zone militaire'' by fire as a very expedient measure.
It was claimed by counsel for France that the military zone
around Paris was limited by the law of 1821 to loO meters;
that Giles's buildings, which were at a distance of 450 meters,
could not have been included in it; and that the report of the
chief of engineers showed that no property was destroyed in
that vicinity.
It was also claimed by counsel for the French Eepublic that
the acts comi)lained of, if committed, were the unauthorized
acts of soldiers and marauders; that no authority for them
had been given by any civil or military officer of the French
Government, and that by the terms of the convention and the
decisions of the commission the government was not responsi-
ble tlicrefor; and that as to the order of General Trochu it
did not direct the destruction of the works, but merely the
abandonment of the buildings within the "zone militaire."
The destruction of them subsequently, either by the French
army for the purpose of preventing them from being used by
the German army for shelter and i)rotection, or by the Ger-
man army in its attack upon Paris, did not, it was maintained,
impose upon the French Government any liability.
The claim was disallowed by a majority of the commission,
consisting of Baron de Arinos and M. Lefaivre. The commis-
sioner on the part of the Unit(».d States, dissenting from the
opinion of the majority, said : *• It fully appears that the build-
ing of the (;laimant was torn down and used for fuel by the
national guards, fran(j tireurs, and marauders. The injury by
marauders 1 do not think ought to be allowed, but that done
by the national guards and franc ti rears I think ought to be
allowed.'-
WiUiam Ogden (iilcHy. The liepuhlicof Fraure, No. 12, Bout weH's Report,
202: cominissioii iindor tlio convention Ix^twccn the lJuit4>>d States aud
France of .lunuary 15, 1880.
WAR CLAIMS. 3705
Memorialist, a citizen of France, claimed
Choorreaa's Case, compensation from the United States for a
quantity of cotton and other articles of per-
sonal property, valued at $4,000, which were shown to have
been destroyed by fire set by United States soldiers. There
was evidence tending to show that the property in question
was at the time of its destruction situated in the theater of
war, in a portion of the country marched over and ravaged
by the forces both of the United States and of the Confed-
eracy ; and on this ground it was argued on the part of the
United States that the claim was not within the treaty between
the United States and France of January 15, 1880, because
the acts complained of were not committed within "the ter-
ritorial jurisdiction" of the United States. This question was
disposed of by agreement between the two governments, as is
elsewhere shown.^ Apart from the question of jurisdiction, it
was contended on the part of the United States that that Gov-
ernment was not liable for losses "arising from depredations
committed in places where the armies were present, whether
such depredations were by the soldiery or by camp followers,
inasmuch as the acts were not only without authority, either
civil or military, but were in violation of the rules and articles
of war, and of the orders of the military commanders.'^ Upon
the merits of the case the Commission made an award in favor
of Chourreau of the sum of $970.
Joseph Chourreau v. The United StaieSj No. 43, French and American
Claims Commission; treaty of January 15, 1880, Boutweirs Report, 134.
The cl^i^jt'^ memorial contained a sched-
Bertrand'8 Case, ule of arfl^^^lleged to have been taken or
destroyed by the Army of the United States
in April, 1804, at his residence in the parish of Natchitoches,
Louisiana.
It was claimed by counsel for the United States that as the
property was destroyed upon the theater of war and while hos-
tilities were flagrant the Government of the United States
was not liable for the damages sustained by the memorialist.
The commission made an award in lavor of the claimant in
the sum of $4,800, which was understood to be in compensa-
tion for a quantity of cotton that was destroyed by order of
the oflScers of the Army, through fear that, if not destroyed,
it would fall into the hands of the Confederate authorities.
The commissioner for the United States assented to the
» Supra, II, 1145.
r
3706 INTEKNATIONAL ARBITRATIONS.
award upon the ground that tho rule established in the case of
Chourreau justified and re(iuired the allowance to Bertrand.
Bertrand v. United StatrSj No. 315, liout well's Report, 147: Commission
under the convention between the United StAte^s and Friiuoe of January
15, 1880.
Auguste Labrot was in 1862 the owner of a
Labrofs Case, tract of land in the county of Kenton, State
of Kentucky, on the west bank of the Licking
River, on which stood a grove of locust trees. A portion of
the Army of the United States was encamped in the neighbor-
hood, under the command of Gen. Lew Wallace. Upon the
advice of an engineer. General Wallace ordered the destruc-
tion of the grove for the puriK)8e of giving free range to the
guns in the defense of the position.
As the property was situated in a State which recognized
the jurisdiction of the national government, and as the destruc-
tion of the property was due to a specific order of the general
in command and for the benefit of the public service, the lia-
bility of the government to compensate the owner for the value
of the i)roperty destroyed was admitted by counsel for the
United States.
It was contended by special counsel for the claimant that the
grove was of great value, as it added to the beauty of the land-
scape, and that the estate was injured to the amount of $6,000
by its destruction. Counsel for the United Slates contended
that the value of the grove, which consisted of three acres of
locust trees, represented to have been about twelve inches in
diameter and thirty to forty feet in height, could not have
exceeded 8400. ^Ifft^
An award was made by the commission in the sum of 81,500,
D'iUiam MeanSf esecutor of Aufjuste Labntt, v. United StateSf No. 272,
Boutwell's Re]K)rt, 1H9: ('oinmission under tho convoiitioii between tho
United States and Franco of Jannary 15, 1880.
It appeared that tlie claimants were the
Cases of Bercier & owners of 107 bales of lint cotton, of the
PhiUi ** ^ ^ aggregate value of 814,029.03, in the city of
Mobile, Ahibania ; that 42 bales were stored in
the City Warehouse, 25 at the Okalona Press, and 40 at the
Union Press; and that in consequence of an explosion of fixed
ammunition, which occurred May 2."), 18(>5, the warehouses and
their contents were destroyed by fire. The testimony showed
that upon the fall of Mobile, April 12, 1805, the commander of the
WAR CLAIMS. 3707
United States army placed guards around certain warehouses
in which cotton was stored, and that the owners were excludetl
from the warehouses, and had no opportunity either to protect
the cotton or to remove it. The warehouse keeper in his testi-
mony said: "There were guards of soldiers put over all the
warehouses of cotton in the city of Mobile, acting under the
authorities of the government of the United States army, then
in x)ossessioh of the city." Of the cotton so held, more th<in
9,000 bales, including that of the claimants, were destroyed by
the explosion which took place on May 26, The cause of the
explosion was the accidental dropping of a shell by a soldier,
the shell exploding and setting fire to the buildings in the
neighborhood.
Upon the same state of facts the same question was raised
in the case of Phillippi v. The United SUtteSy No. 129. In the
argument of that case counsel for the United States presented
the following views:
''The testimouy shows that npon the fall of Mobile, which took place
April 12, 1865, the coinmander of the United States army placed guards
aronnd certain warehouses in which, as was understood, cotton was stored.
It does not appear that possession was ever taken of the cotton by any exana-
ination of it, or by assninin^ the custody of it in the sense of taking the
keys of the warehouses or displacing the warehouse keepers who may have
had the warehouses in charge. As far ns the record discloses, the trans-
a<^tiou, the commanding general did only that in reference to the ware-
houses that otlicers of the army wore accustomed to do upon the theater
of war — protect as far as they were able private property from depreda-
tion by the mob or by soldiers, and from tlie accidents and casualties of
war.
"It is to be considered that at that time the war was flagrant, peace not
having then b'een declared nor established. The order of General Canby
of the 21st of April, 18()5 (No. 30), shows conclusively that it was the policy
of the government to respect private property and to transfer the (piestiou
of ownership to the civil authorities.
'*In contemplation of law there was no seizure of the Phillippi cotton.
"In the case of Pelham vs. Kose (!» Wall., p. 106) the court says: 'By the
seizure of a thing is meant the taking of a thing into possession, the man-
ner of which, and whether actual or constructive, depending upon the
nature of the thing seized ; as a])plied to subjects capable of manual deliv-
ery, the term means caption— the physical taking into custody.*
'*And they say further: Mn the case at bar a visible thing capable of
physical possession is the subject of the libel.' In the ease of Phillip])!
the cotton was a visible thin«: ca))al)le of physical possession and mani-
festly the subject of ca]>tioii, whi(;h in law means the actual taking, as the
seizure of a person. In order to make the Government of the 1 'nited States
liable in the case at bar, two things must appear: (1) That an order was
issued by the otlicer commanding at Mobile, or by some oflicer duly author-
3708 INTERNATIONAL ARBITRATIONS.
t/.ed in the premises, directing an actual seizure in the sense iu which the
word is defined by the Supreme ('ourt in the case mentioned, and (2) an
execution of that order by the actnal taking of the property in the same
sense.
''Upon the evidence neither of these two conditions is found to exist.
There is no evidence that any order was issued by General Canby, or by
any other officer duly authorized thereto, to make caption of the cotton;
and, secondly, there in not ouly no evidence tending to show that caption
of the property wus made, but the evidence is conclusive that no act
touching the condition of the cotton was performed by any officer or
soldier of the army of the United States.
'' Inasmuch as this claimant chose to make an investment in that species
of property which was employed by the Confederate authorities in sus-
taining its credit abroad and maintaining its armies at home, and inasmuch
as she was within the jurisdiction of the United States, and therefore had
legal knowledge of the laws and regulations for the conduct of the war,
and inasmuch as she chose to mix that property with other property of
the same kind, belonging either to the Confederate government or to per-
sons citizens of the United States, and then subject to its authority, she
can not now complain that the army of the United States was employed
to guard and protect that property in mass, for the twofold purpose of
preserving it from destruction and of securing to the Government of the
United States whatever rights of i>roperty might ultimately, upon inves-
tigation, be established in its behalf.
'* The destruction of the warehouses and cotton was an accident, and
one of the incidents of war by which property was lost, and the loss must
rest where it fell.
"The Government of the United States never attempted to appropriate
this property to its own use, but only to guard and protect it for the time
being.
" In this view of the case the counsel for the United States maintains
that even if it should be the judgment of the commission that the claim-
ant is a French citizen, it is yet true that the Government of the United
States is not liable under the treaty for the loss, it not having arisen from
any act of the civil or military authorities of the Government of the
United States, but, on the contrary, from an accident and an incident of
war over which neither the civil nor military authorities of the Govern-
ment of the Uuitwl States had any control, and which, indeed, they were
l)Owerless to prevent."
In the lMiillii)pi case special counsel for the claimant sub-
mitted in reply the following argument:
** I'pon the express terms of the treaty we maintain that the property
of this nonresident neutral was protected by tht; principle of 'pnblic
law, justice, and equity.'
**The property was lawfully acquired by her. She was in full posses-
sion of it in a warehouse which pro hav rice was hers. She was dispos-
sessed by the military authority on 12th of April, and excluded from all
control over it, and this continued to 25th of May, when the explosion
took place, which destroyed it. In all this time, seeing the danger to
WAR CLAIMS. 3709
which the property was exposed, she may have made stich disposition of
it by removal or sale as would have avoided, loss to her. It is uo answer
to say that it is uncertain she may have done either.
*'The seizure of all the warehouses, containing 17,073 bales of cotton,
was of advantage to the government, as it enabled it to secure such por-
tions as belonged to the hostile organization and to tho^e who sustained
it. All that was not destroyed was delivered by the provost-marshal to
Captain Saml Lappiu, and by him transferred, as the law directed, to the
special agents of the Treasury.
"If we are right in the contention that the property of the claimant
was protected by the principles of 'public law, justice, and equity' appli-
cable to the case, then, upon undisputed law, the depriving her of. the
custody and control of it charges the government with the responsibility
of restonng the property or accounting for its value,
''It is of no consequence to the claimant that the loss has been occa-
sioned by one cause or by another. If her cotton h^ been part of that
testified to have been shipped, and had been lost by the perils of the sea;
or if, after deliver^' to the Treasnry tigent, he had sold it and converted
the proceeds to his own use, in either case it would be no answer to say
the government has not received any benefit from the seizure.
" It is on this view of the case we have not deemed it essential to go into
the investigation of the facts attending the great explosion, by which so
much property was destroyecl and so many lives lost, for the purpose of
demonstrating that it resulted from the grossest negligence.
"The claim now made is for cotton, but it stands on the same ground
under the treaty, and must therefore be regarded in the same manner as
if it were for so many bushels of eorn or of wheat.
"Neither the abandoned nor captured property act, nor any other act of
Congress, difters cotton from any other product.
" We conclude by saying that if l»y 'the humane maxims of the modem
law of nations the private property of noncombalatits is exempt from capture
as booty of war,' it needs no argument for the position that, a fortxorij
such exemption must be extended to the property of a nonresident
neutral.'*
The counsel in the case of Bercier and Laborde claimed
that —
"From the day of the capture of Mobile said cotton has been treated
by all i)arties as captured cotton, by the general in command, by hi&
quartermaster, by. the (luartermaster in New York, to whom General
Canby gave notice that he had ordered all cotton captured in Mobile to
l>e sent, by the Secretary of War, when he ordered General Van Vliet to
turn it over to the Treasury aj^ent, and finally by the Court of Claims in
ordering the proceeds to he paid over to the claimants, and by the Secre-
tary of the Treasury when ho rei)orted to Congress on the subject. In
giving the above judgments of the Court of Claims, the Secretary says to
Congress, 'Statement C contains a list of awards of the United States
Court of Claims for the proceeds of captured or abandoned property under
the act of March 12, 1803, presented to and paid by the Treasury Depart-
ment up to June 30, 1876.'"
i
3710 INTERNATIONAL ARBITKATIONS.
Ill both Mie foregoing cases the claim was disallowed, upon
tlie ground, as it was understood, that the (fovernment of the
United States was not liable for the pecuniary losses caused
by the explosion of the 25th of May I860.
(hear liercier d'- Francois Laborde v. rnited Slatta, No. 56, BoutwelPs
Keport, 148: ConiniisBiou undor the convention between the United States
and France of .lanuarv 15, 1880.
"Neutral property in a belligerent's terri-
Castel*! Case. tory shares the fate of war the same as that of
subjects or citizens. If injured or destroyed
in battle or siege, in the absence of circumstances evincing
waiit6nness or culpable neglect on the part of the government
within whose jurisdiction it is, the public law furnishes the
owner no redress against such government. The case is not
altered if the owner happens to be an officer of a neutral
power.
"The house and contents of Jose Castel, who is represented
to have been a citizen of the United States and its consul at
Puerto Cabello, were injured in battle, or siege, with fighting
through several days, between the federal and government
forces, near the close of the Venezuelan civil war, in 1863.
" We find nothing in the evidence sent us to justify the find-
ing of the old commission that the loss of a part of the effects
'might and should have been avoided,- in any such sense as to
(treate a liability against Venezuela. No such claim was made
by Castel. There does not appear, and it is not claimed, that
there was wanton or avoidable injury done. The line, how-
ever, between what is avoidable and what not, occurring dur-
ing an engagement, it* such be ever discernible, we would not
undertake to draw. There is no showing of injury before or
after the conflict.
"The claim, which is for 83,803.7."), as of 18G8, and on which
the sum of $2,()()(> was before awarded, is disallowed.
"We have reached this conclusion upon the hypothesis that
Castel was, as represented, a citizen of the United States and
its ccmsul. It is doubtful, however, whether he ever was such
citizen. Three of his witnesses speak of him as a French sub-
ject; and the records in the State Department show he was
<mly acting vice consul of the United States, which he might
have been, although a Frenchman as to citizenship."
Little, fomniissioinT, for tlu' commission, Joxr Canivl v. Venezuela* No.
1^6, United States and ViMM'znelan Claims Commission, convention of
December 5, 1885.
WAR CLAIMS. 3711
Glaimaut, a citizeu of the United States,
shiigiey'i Case, claimed $12,717.50 as damages from Ghile for
the destruction and appropriation of his prop-
erty. It appeared that during the civil war in Ghile in 1891
he removed his family from his residence at Miramar, leaving
the house in charge of his servants; that on August 14, 1891,
certain troops of the Balmaceda Government, under command
of their officers, occupied the premises and despoiled and car-
ried away property to a considerable amount; that on the night
of August 23 the house was again taken possession of by the
Balmaceda forces, who put the servants out in order to occupy
it themselves; that horses of the regiment were quartered in
the garden and park; that trees, plants, and fences were
destroyed, and the house completely sacked.
The agent of the United States, maintaining the liability of
Chile, cited Wharton's Digest, sec. 223, pp. 579, 580, and 698;
Wharton's Digest, sec. 225, p. 599; ibid. sec. 225, p. 599; Hal-
leck's Int. Law, II. p. 37; Willett v. Venezuela^ Venezuelan
Report, pp. 96-112; Jean Jeann^aiid v. The United StateSj
Report of the French Claims Commission, p. 132; Joseph Chour-
reau v. The United States, French Claims Commission, pp.
134-146; Bertrand v. The United States^ French Claims Com-
mission, p. 147; Meng v. The United States, French Claims
Commission, p. 189.
The agent of Chile contended that claimant must show
beyond a reasonable doubt not only that he was in possession
of the property which he specified as having been lost, but
also that it "was taken or destroyed by the Chilean army,
acting under the orders of duly authorized officers, or that it
was taken by the Chilean army under such circumstances that
the officers of the army were bound in good faith to have pre-
vented the pillage."
The commission unanimously rendered the following de-
cision :
'' This claim leads us to the consideration of two questions —
one of law, the other of fact.
*' In regard to the first, we must determine to what point
Chile must be considered liable for the acts of her troops or
soldiers.
" In view of the decisions rendered by similar commissions
that have met at this capital, as a result of the treaties signed
by the United States and Mexico, Great Britain, and France,
f
3712 INTERNATIONAL ARBITRATIONS.
we are of opinion that the following i)roi)08itiou8 can be accepted
as correct :
"(a) Neutral property taken for the use or service of armies
by officers or functionaries thereunto authorized gives a right
to the owner of the proi)erty to demand compensation from
the government exercising sudi authority.
"(fr) Neutral property destroyed or taken by soldiers of a
belligerent with authorization, or in presence of their officers
or commanders, gives a right to compensation, whenever the
fact can be proved that said officers or commanders had the
means of preventing the outrage and did not make the neces-
sary efforts to prevent it.
^' (c) Acts of simple marauding or pillage practised by sol-
diers absent from their regiments and from the close vigilance
of their commanders do not afifect the responsibility of gov-
ernments. Such acts are considered as common crimes, subject
only to ordinary penalties.
" In view of these principles, and having before us the evi-
dence submitted by both parties, we consider that the claimant,
W. S. Shrigley, is entitled to compensation for the losses suf-
fered, and we award him the sum of 85,080, in United States
gold coin.''
W. S. ShrU/Iey v. Chile, No. 4, Am. and Chilean Claims CommiHsion,
treaty of Augimt 7, 1892, Shield's report, 38; opinions of the commiBsion,
139.
An award on precisely similar pounds was made in the case of Jennie
Ji. Utad V. Chile, No. 13.
Edward C. Du Bois, a citizen of the United
Case of Du Bois. States, made a claim against Chile growing
out of tlie acts of the military authorities
of that government in Peru in 1880 and 1881. Du Bois
claimed at that time to have had possession as mortgagee
of such part of the Ohimbot^, Huaraz and Kecuay Railroad
as was then completed and in operation, and to have had on
hand at Cliimbote a large quantity of machinery, implements,
and material for the construction of the rest of the road. The
evidence showed that on September 10, 1880, "General Patri-
cio Lynch of the Chilean army entered the harbor of Chimbote
with certain Chilean ships and took possession of said town and
said railroad; that the town was not fortified nor was any
resistance made to his landing, nor were there any Peruvian
soldiers within hundreds of miles of said port; that the sol-
diery under the (command of (leneral Lynch began an indis-
criminate, unjustifiable, and unprovoked api)ropriation, de-
struction, and despoliation of the memorialist's property,
WAR CLAIMS. 3713
«
notwithstanding notice was given that he was au American
citizen ; and that General Lynch on departing gave orders for
the destruction of the locomotives and rolling stock of said
railroad, and a large amoant of lumber and ties were by his
orders burned and destroyed. Claimant caused inventories
of the property destroyed and taken away, both of his indi-
vidual property and the railroad property, to be made out by
parties cognizant of the amount and value thereof, and duly
protested against the said illegal acts of said troops. It also
appears that afterwards, in December 1881, the Chilean forces,
under command of Capt. Jorge Montt, again visited Chimbote
and took possession and removed all rails, cross- ties, and other
railroad property left there; and again, in January 1882, the
said Chilean forces took and carried away all rails, plates,
bolts, etc., belonging to the railroad and in the memorialist's
possession, against all of which claimant duly protested.''
There was also evidence introduced by the claimant to show
that the destruction and carrying away of this property was
not necessary as a military operation, but was wanton and
without excuse.
Claimant asked judgment for the amount due him by the
Government of Peru on account of the construction of the
road, and for the value of his individual property taken and de-
stroyed; and he claimed under the laws and usages of Pernio
per cent profit on his contract to build the road, which profit he
alleged that he would have made but for the destruction com-
mitted by Chile. The total claims and interest amounted to
$2,451,155.58.
Chile offered evidence tending to show* that claimant had no
individual property on this railroad, and that the destruction
and carrying away of the property was a legitimate act of war,
as it belon&red to Peru.
Briefs were filed by the private counsel for the claimant and
by the agent for Chile, and the case was fully argued by the
agents for the United States and Chile, and assistant counsel
for Chile.
A majority of the commission, Messrs. ClaparMe and Goode,
decided : .
"That the (rovernment of the Eepublic of Chile should be
held responsible for the wanton and unnecessary destruction
of the claimant's property at Chimbote by General Lynch, in
command of the Chilean forces, and we find that claimant is
3714 INTERNATIONAL ARBITRATIONS.
entitled to recover damages from the Govern men t of Ohile in
the sum of $155,232 United States gold coin."
Edward C. I)u Bais v. C'Ai{«^No. 2, convention of Aagost 7, 1892, Hhields's
Keport, 20; opinions of tb<> commission, 193.
Mr. Gana dissented, maintaining that the railroad, and other things in
question were the property of the (Government of Peru and con8e<|UOutly
that the commission had no jurisdiction of the case, to say nothing of the
fact that Chile had the right to Heize and appropriate the property of her
enemy.
3. Appropriation of Property.
The brig Splendid^ the property of citizens
Case of *^® "*P ^^' of the United States,, was taken possession of
by the Mexican authorities at Vera Cruz on
August 3, 1829, and used for the transportation of troops.
The commissioners allowed the sum of $2,093.67 for the seiz-
ure and employment of the brig, being the fair price of the
services rendered by the vessel and crew, with interest at the
rate of 5 per cent.
Commission under tlie convention between the United States and Mexico,
of April 11, 1839. A similar decision was made in the case of John Ken-
nedy and Ferdinand JC. IVhUe v. Mexico, for the use of the bark Ursula for the
transportation of troops in 1829 from Vera Cruz to Tocoluta.
John Belden, a citizen of the United States,
owned a house at Matanioras, in which, in
1836, his clerk and agent rented three rooms to the general of
the Mexican forces at that point for his personal occupation.
Subse([uently, without the (consent of tlie owner or of his agent,
and ill disregard of the contract, the whole house was tilled
with troops and converted into barracks. The umpire awarded
as rent for the use of the house, and as compensation for dam-
age done to it by the occu[)ation, the sum of $10,815.29.
Commission under thoconvnition between the United States and Mexico,
of April 11. IK^y.
The house above mentioned continued in the occupation of
the Mexican forces till May, 1S46, when it was taken possession
of by the Ignited States Army under General Taylor. The
claimant therefore presented another claim to the commission-
ers under the act of Congress of March .*>, 1849. The commis-
sioners rendered the following decision:
^'The evidence in the case very clearly shows that the pos-
session of the claimant's ])roperty by the authorities of Mexico
was wrongful, and in addition to compensation for the use of
, WAR CLAIMS. 3715
it the government is clearly liable for any injury done to the
property whilst in possession of it. The claimant urges that
he is now entitled to compensation for the use and value of his
property from the 11th of April, 1839, because he says it is to
be presumed that the umpire, beii\g concluded by the stipula-
tions of the convention of that date, could not make an award
for any injury or damage accrning to claimants after that pe-
riod, and he also deduces as proof of that presumption a certain
discrepancy between the sum allowed by the American com-
missioners and the award made by the umpire. But this board
is of opinion that nothing in the case before the former com-
mission appears to raise such a ])resumption. The • • •
amount of damages which should be awarded was a disputed
point between the members of the joint commission, but it does
not appear that any question was raised as to the time up to
which these damages should be computed. The claimant him-
self, by his memorial, demanded that the damages should be
computed for five years. The first possession of the premises
by the Mexican authorities was shown to have been in October,
1836, and the claim was presented to the joint commission in
September, 1841. The American commissioners, however, com-
puted damages for five years and five months — that is, up to
February, 1842, inclusive. • • • This matter, however, is
put at rest by the claimant himself, for in his evidence in the
case he shows that his attorneys • * * demanded in his
behalf rent from the date of the award only, that is from the
2oth of February 1842. • • * This boaVd is therefore of
opinion, aiid does decide, that the aforesaid claim of John
Belden for the forcible use of and the injury done to his prop-
erty in the town of Matamoras, from the 25th of February,
1842, to the 17th day of May, 1846, by the Mexican troops, is a
valid claim against the liepublic of Mexico and does accord-
ingly allow the same.''
The commissioners subsequently awarded Belden $5,342.87 —
principal, $4,208.33; interest, $1,134.54.
On May 18, 1846, General Bravo, command-
Sauinier*! Case, ing the Mexican military forces in Vera Cruz,
issued on order, agreeably to the decree of the
national government, requiring all Americans to leave Vera
Cruz within eight days. The ground of this order was the
existence of hostilities between Mexico and the United States.
Among the persons affected by it was Elisha TI, Saulnier, an
American merchant at Vera Cruz, who, in the prosecution of
his commercial operations, had left Vera Cruz for New York in
March, 1846, being at that time indebted to the Mexican Gov-
ernment for duties on previous importations to the amount of
about J!'4,00(), for which he had giv^en bond with sureties. No-
tice of the order, however, was given to the clerks and agents
5627— VOL. 4 31
3716 INTERNATIONAL ARBITRATIONS.
whom he had left in charge of his basiuess in Vera Cruz, and a
demand was coiucideutly made upon them for payment of the
duty bonds, which had not then matured. They had no means
of meeting this demand but by the sale of the goods. Other
creditors, probably alarmed in consequence of these proceed-
ings, also claimed the benefit of a lien which by law they had
ui)on the property of the claimant To enable the agents of
Sauluier to pay the debts thus pressed upon them, though not
due, his property, represented to be of the value of about
$48,000, was sold at auction and produced only about $7,000.
A claim for the loss was presented to the commissioners under
the act of Congress of March 3, 1839.
The commissioners said that the principal question to be
decided was whether the sale of the goods was to be regarded
as voluntary on the part of the agents of the claimant or as
compulsory and forced upon them by the illegal exactions of
the Mexican authorities. They found upon the testimony that
the sale was of the latter character, but they observed that it
was not easy to determine the extent of the resulting losses.
It appeared by the proofs " that the depreciation of the value
of property in Vera Cruz at the time was attributable to the
war which had broken out between the countries," and there
was " no reason to believe that the claimant could have real-
ized the estimated value of his property if he had been allowed
all the advantages which he was entitled to under the treaty
of 1831. That treaty allowed him only six months to close his
aft'airs, even if he had been in Vera Cruz at the outbreak of
hostilities.^ He would not have been permitted to extend his
mercantile pursuits, nor to remove his goods into the interior.
* * * A good deal of the injury was ^^attributable to the state
of war, depreciating the value of property, breaking up com-
mercial pursuits, and in various ways bringing distress upon
the community where it unhappily exists." The commissioners
subsequently awarded as principal $12,000, and as interest
$2,950— in all, $14,950.
On the occasion of the attack of Walker's
HoUenbeok'i Case, filibusters on Castillo Viejo, February 15,
1857, the Costa Kican forces, as part of their
operations for the defense of the place, set fire to a building.
^Tho commissioners elsewhere expressed the opinioD that the right
under the treaty to remain in the country for the purpose stated did not
inclnde the right to return for that purpose.
WAR CLAIMS. 3717
in consequence of which a hotel belonging to Thomas Town-
send and John E. Hollenbeck, citizens of the United States,
caught fire and burned down. Compensation was awarded to
the owners for the value of the hotel. The lessees, who also
were citizens of the United States, received an award for the
value of personal property destroyed in the same fire.
Bertinatti, uuipire, couvcntiou between the Unite<l States and Costa
Rica of July 2, 1860.
Numerous claims were presented to the
Garza's Case. mixed commission under the convention be-
tween the United States and Mexico of eTuly 4,
1808, for indemnity for the seizure of cattle belonging to citi-
zens of Mexico in Texas by the military authorities of the
United States in lS6:^, 1804, and 1805. The typical case was
that of the Heirs of Pedro Jone de la Garza v. The United
StateSj No. 736, which the agent of the United States moved to
dismiss on the ground (1) that the proofs of citizenship weie
defective; (2) that the chiimant was at the time of his alleged
injuries "domiciled within the territorial limits of the State of
Texas, with which State the United States was then at war,
and was therefore an enemy of the United States" and could
not '^ claim against the United States" for the cattle taken or
destroyed by troops of the United States within the hostile
territory; and (3) that, if the claimant was not domiciled in
Texas, he owned land there, and the property alleged to have
been taken or destroyed was tlie growth and produce of the
soil of enemies' territory and, as such, enemies' i)roperty in the
sense of the law of nations. Other grounds were laid, resting
in matters of evidence.
The umpire. Sir Edward Thornton, after referring to the
voluminous and contradictory character of the evidence in the
case of Garza, said :
" There still remains, however, strong evidence on behalf of
the claimants that a certain amount of live stock belonging to
De la (larza was killed and used or taken by troops of the
United States, who were under the orders of Colonels Davis
and Haynes. The umpire does not think that this fact is re-
futed by the evidence produced by the defence, or that it is
incomi)atible with that evidence. But he is of opinion that it is
satisfactorily proved that the amount of the claim is immensely
exagf»:erated, and that it is impossible that it could have reached
anything like the sum claimed. The value and number of the
animals really used or taken must to a certain extent be con-
r
3718 INTERNATIONAL ARlilTRATIONS.
jectural; but, as far as the umpire cau judge, be tliinks that
$G,0(K) would not niucli exceed nor be nuich less than the
amount due. Tlie umpire therefore awards that there be paid
by the Government of the United States on account of the
above-mentioned claim the sum of six thousand dollars ($6,000)
In gold coin of the Ignited States, with an annual interest of
six per cent, from the 30th of November 1863 to the date of the
final award."
In the case of CharUn H. Wheeler and Ansel
Caseof the "indM,'* /^. Anderson^ owners of the American brig
Indus^ V. Mexico J No. 187, before the commis-
sion under the convention of July 4, 1868, it was represented
that tlie brig was cleared from Tampico, Mexico, for Tabasco
December 16, 1862. Being detained, however, by low water
on the bar at Tami)ico, she was taken possession of by the
French forces then in those waters and held until January 14,
when they abandoned her to her captain i nd crew, having
in the meantime employed her in their naval operations. On
the following day she was seized as prize by the military
forces of Mexico, under Gen. Juan Jose de la Garza, who,
without any judicial proceedings, detained the brig till the
2d of the following March, when he expelled the officers and
crew and on the next day sold her at public> auction. On
the 6th of April the Mexican Government was appealed to by
the American minister, and three days afterward ordered the
vessel to be restored, but the order was too late and was not
carried into effect. The commissioners, Mr. Wadsworth
delivering the opinion October 6, 1870, held tliat the question
of prize or no prize was not at issue. They said: ^' Under the
treaty of 1831 between the Ihiited States and Mexico, and the
law of nations, the latter government had a choice to send
the vessel before the established courts for prize causes in the
country, or to release the property and indemnify the owners.
That government preferred the latter course, but was disap-
pointed by the hasty and wrongful conduct of General Garza.
We think the claimant is entitled to an award." They awarded
$10,000 for the vessel and contents, $1,400 for demurrage,
$1,500 for the crew expenses and loss, and $100 costs, making
$13,000 in all, with interest from March 2, 1862.
"General Avalos, commanding at Mata-
aseo egna s ,j^^,,jj^g^ ^,j ^^^ service of the Mexican Goveru-
ment, during the siege of that place in October
1851 by Carvajal, seized the storelumse in which Putegnat's
WAR CLAIMS. 3719
goods were on sale at the time, turned the sforehoase into a
fortification, from whence to resist and annoy the enemy, and
forbade the removal of the goods to a place of safety. In the
coarse of the contest the honse was set on fire by the shells of
the enemy and was destroyed.
"In determining whether there is a liability in this case on
the part of the Government of Mexico to pay the value of the
goods thus destroyed by the enemy, I shall proceed upon the
conclusioji, which I draw from the facts in the case, that
the goods were lost because of the seizure of the house and
the order forbidding their removal. I shall treat the case as a
seizure of the house and goods by General Avalos for the pub-
lic service, and their dCvStruction by the enemy as a necessary
consequence of the nature of the service to which, for the pub-
lic benefit, the goods were subjected. I shall assume that if
the government would be liable for the house destroyed by the
enemy's fire, it would be liable for the goods also, perhaps
much more so, as they might have been removed to a place of
safety in a few minutes, since the quantity was not large.
"I conceive that the Government of Mexico is not liable for
property destroyed by the enemy during the siege of a town
without any complicity on its part; nor for property neces-
sarily and incidentally destroyed by the government in its fire
upon an enemy. To make the government responsible, the
property must be taken by its authority to be used against the
enemy (to assist an attack or make good a defense, for
instance) or destroyed or carried away to prevent the enemy
from using it. This is what Vattel calls taking deliberately or
by way of precaution. * As when a field, a house, or a garden,
belonging to a private person is taken for the purpose of
erecting on the spot a town rampart or any other piece of
fortification, or when his standing corn or storehouses are
destroyed to prevent their being of use to the enemy, such
damages are to be made good to the individual, who should
bear only his quota of the loss.' (Book 3, chap. 15, p. 402.
See also Grotius, book 3, chap. 20, sec. 7.) Property taken or
destroyed for the i)ublic use lawfully by the civil or military
authorities must be paid for by the government. (Mitchell v.
Harmony, 13 Howard, 115; Hale r. Lawrence, 3 Zabriskie,
728; Grant v. 11. S., 1 Court of Claims, 41.)
"There cannot be much doubt about the general principles.
Is there any doubt about their application in this case f The
3720 INTERNATIONAL ARBITRATIONS.
enemy destroyed the property indeed, but only after the gov-
ernment had tjiken it for public use, by being used by the
government, and because it was so used. It will be found to
be an immaterial fact that the enemy destroys the property
after the government has found it necessary to seize it and
use it against the enemy. The horses, wagons, etc., impressed
by the government forces for use against the enemy or in the
public service in general, although only a temporary use was
intended, must be paid for, although destroyed or captured by
the enemy. It is the seizure of private property for the public
use and its loss or destruction whiL so employed, whether by
the enemy or the government, that entitles the owner to pay-
ment. Even if it be morally certain that the enemy would
himself take the property and use it, depriving the owner of it
forever, still its destruction by the government entitles the
party to compensation. (See Grant's case, supra; and obser-
vations of Ch. J. Taney in Mitchell v. Harmony, supra.) We
must hold, even in such a case, that the public has received
the value of the property, by embarrassing its enemy by its
destruction, and is bound to make Just compensation. It can
never be Just that the loss should fall exclusively on one man
where the property has been lawfully used or destroyed for the
benefit of all.
**I think thCvse people are entitled to an award of the value
of the goods and interest. It is therefore awarded that the
Government of Mexico pay Uy the Government of the United
States, in the currency of the latter, $2,000, with interest at
the rate of 0 per cent per annum from the first of September
1851 to the close of the labors of this commission, and $100
costs for and on behalf of claimants.''
Wadswortb, coiiiinissioner, deliveriiij^ the opinion of the commiHsion,
August 2, 1871, Jno. P. Putrgnafn Heirs v. Mexico, Xo. 24, convention
botwoen the irnited States and Mexico of July 4, 1868, MS. Op. I. 618.
The 8aine principle was applied by the comuiissioners in the cases of
Mariano Treviiio Garza v. Mexico^ No. 892, MS. Op. I. 333; David C. Hardin
V. Mexico, No. 457, MS. Op. II. 163; Samuel L, Smith v. Mexico^ No. 456, MS.
Op. 11.164.
"General Corona had undoubtedly a right
Eiiiott'B Case, to appropriate Elliott's property, if necessary
for the defense of the country against the
French invaders, or to devastate it, if the war required it.
The demands of war are even more absolute than those to save
one's life, and, nothing appearing to the contrary, he was
WAR CLAIMS. 3721
obliged to do it. But in all such cases it is expected that the
goverument will repay for the injuries done as much as maybe
in itfi power, so that claimant seems to be fairly entitled to a
compensation, however highly he may have estimated his losses
in his valuation."
Lieber, umpire, April 24, 1871, Benjamin Elliott v. Mexico, No. 460, Am.
Docket, convention of July 4, 1868.
''The umpire considers that the claimant is
Bowen*s Cue. entitled to compensation for the damage done
to his house during its occupation by General
Jauregin, and for the wounds which the claimant received
when that general was attacked by Garvajal. General Jaure-
gin was doubtless justified in self-defense in taking refuge in
Bowen's house ; but it was certainly his doing so which brought
Garvajal's attack upon the house during which the claimant
was wounded. The umpire therefore considers that he is enti-
tled to compensation on both these accounts."
Thornton, umpire. Smith Bowen v. Mexico, No. 442, convention of July
4, 1868, MS. Op. III. 586.
*'The necessities of war, in the umpire's
Case of Bartlett ft . . i.i • ^ i ^ i.
^ opinion, excuse the seizure of such property by
the authorities, provided it be paid for, and
the government can not be held responsible for the consequen-
tial damages which may arise from such seizure."
Thornton, umpire, Bartlett 4* Barge v. Mexico, No. 381, convention of
July 4, 1868, MS. Op. IV. 606. The claim was based on the seizure by Gen-
eral Cortina, for the use of the Mexican Government in war, of horses and
mules employed by the claimants in running a stage from Matamoras to
Bagdad. The umpire awarded the value of the property taken, with in-
terest at 6 per cent from the date of the seizure to the final award. S. P.,
Cordillera Oold and Silver Mininy Co, v. Mexico, No. 734, Thornton, umpire,
MS. Op. VI. 419.
^'The umpire is of opinion that the Mexican
Cole's Case. Government is undoubtedly liable for farm
produce of all kinds, cattle, horses, mules, and
other animals, farming implements, and other property belong-
ing to the claimant seized under the authority and by the orders
of Mexican officers, and made use of by the Mexican army."
Thornton, umpire, July 15, 1876, John Cole v. Mexico, No. 948, Am.
Docket, convention of July 4, 1868, 6 MS. Op. 497* S, P., Thornton,
umpire, Bartolo Hicka v. Mexico, No. 487, MS Op. VII. 4r>8; Francis Nolan
V. Mexico, No. 337, MS. Op. VII. 411; Jacob Campbell v. Mexico, No. 454,
MS Op. VII. 449.
3722 INTERNATIONAL ARBITRATIONS.
m
A claim was made for the value of goods in
Markb'8 Gas?, bales and packages taken from claimant's store
by the military forces of Mexico for barricades,
and never returned or paid for. The military force in question,
said the umpire, was acting under orders of (ieneral Kuiz, who
had been appointed governor of the State of Tamaulipas by the
Mexican Government, and actually held that position at the
time of the occurrence. Th<?i umpire held that ''the exigencies
of war might have justified the seizure of the goods with a view
to defense against the attack made upon the town, but the
claimants are clearly entitled to compensation for the property
taken from them in this way."
Thornton, umpire, Jonas Maria x. Meiico^ No 630, conyention of July 4,
1868, MS. Op. \'. 310, VI. 375. In Joseph W. Hale v. MeHcOy No. 58, the
claimant had a sawmill and other ])roi)erty which were occupied and used
by CJeneral Corona and other Liberal commanders in 1860. They also de-
stroyed the mill. Sir E<lward Thornton awarded as compensation $20,000,
with interest from Juno 1, 1860. lie made a similar award to a claimant
''for the dani:i«;e done to his garden in the country by transforming it
into a forti Heat ion.'' "This measure/' said Sir Edward, "was taken by
the orders of tlio Mexican CJovernment; but though the constraction of
such works may be a matter of necessity, a jirivate individual who may
sutler from it ought to be compcnnated for the damage done him." (MS.
Op. VII. 400.)
The embargo in time of war of a warehouse
Lacoste's Case, belonging to a person who had fallen under
suspicion aflbrds no ground of claim on the
part of a neutral whose property, being in such warehouse, was
detained there by the embargo for upward of two months while
the authorities were engaged in investigating the question of
the ownershi]) of such property, the ownership being in doubt.
Thornton, umpire, September 4, 1875, ./. /?. Lacosie v. Mexico, Nos. 222
and 717, convention of July 4, 1868, MS. Op. VII., 402.
In the case of the Heirs of Pedro Annen-
Case of Armendarii. dariz V. The United States, No. 398, a claim
was made for the value of lands in New Mex
ico, constituting the reservation on which Fort Craig stands.
These lands were included in the cession of territory to the
United States under the treaty of Guadalupe Hidalgo, by
which the United States engaged to protect holders of land
in their titles. Under the rules established by the United
States for that purpose, the heirs of Armendariz petitioned to
be and were recognized as the owners, and their title was con-
firmed by an act of Congress of June 21, 18G0. Prior to this
WAR CLAIMS. 3723
time, viz, in 1853, the military authorities of the United States
had leased the lands of tlie heirs at a nominal rent, and in 1859
the lease was renewed. In 1864, however, it again expired, and
the heirs then demanded a rent of $6,000 a year. On this basis
no agreemeirt was made, and the Quartermaster-General sent
Armendariz's deed to the General Land Commissioner of the
United States, who, on October 25, 1864, gave an opinion to
the effect that the title of the heirs was deficient and that the
land belonged to the domain of the United States, In conse-
quence of this opinion, the Quartermaster-General on the 12th
of the ensuing November notified the agent of the heirs that,
such "being the decision of the government officer in charge
of the public lands, all further consideration of the case was
entirely unnecessary." A diplomatic presentation of the mat-
ter by the Mexican minister at Washington elicited on the
18th of July 1865 an exposition of the views of the General
Land Commissioner. Prior to this, however, on January 27,
1865, the general in command in New Mexico entered into a
new lease with the heirs at $2,000 a year. On the 23d of De-
cember 1866 the heirs claimed the rent due up to that time,
but it was not paid; and all the papers were sent to the War
Department at Washington. The War Department referred
them to the Quartermaster-General, who in turn transmitted
them to the Third Auditor of the Treasury, who, entertaining
an adverse opinion to the heirs, advised that the papers be sent
to Congress, which was done. By Congress no action was
taken. The claimants preferred to the commission a petition
for an award for the value of the lands and their use.
The agent of the United States took the ground that the
case involved questions essentially judicial, and that no award
should be made to the claimants while those questions were
pending undetermined.
The commissioners on May 1, 1871 (MS. Op. IL 306), con-
curred in treating the entry of the United States under claim
of title and the survey and establishment of a military reser-
vation as an ai)i)ropriation of the private property of Mexican
citizens by the United States for public use, and required the
United States to make compensation. Without reference to
the leases, the authority of the military authorities to make
which was in question, they awarded $14,200 to pay for the
use and absolute appropriation of the lands, considering the
title of the claimants as tolled and vested in the United Sta
3724 INTERNATIONAL ARBITRATIONS.
A claim was made for the destruction of
Costa's Case. property and for the imprisonment of the
claimant by General Fi|fueroa. The umpire
said that at the time a state of war existed, and that claim-
ant was found by the troops of General Figueroa in a part
of the country which wjis under the control of and protected
by the enemy. The umpire was therefore of opinion that that
commander, availing himself of the rights of war, committed
no violation of tliem in taking possession of the property
belonging to a person residing in the enemy's territory.
But as there was no proof that the claimant had committed
any violation of neutrality, tlie umpire did not consider that
General Figueroa was justified in taking him prisoner and
in subjecting him to the treatment which he suffered, and in
requiring him to leave the Mexican territory. On the last
ground the umpire awarded $2,000, without interest.
Thornton, umpire, James A. Costa v. Mexico, No. 560, convention of July
4, 1S6H, MS. Op. IV. 49. The umpire followed this docision in the case of
Alfred F. Marshall v. Mexico, No. 650, MS. Op. III. 414, IV. 54, which was
also a case of destruction of property and of arrest by General Figueroa.
A claim was made for the value of some salt
SimonBon's Case, seized by the Mexican authorities. Mr. Wads-
worth, the United States commissioner, said:
**The government does not show any right in January,
1867, to conliscate salt sold to the parties in 1865, by one of
the belligerents in firm possession at the time. Undoubtedly
sales by a belligerent of his personal effects, fairly made,
within his own or a neutral jurisdiction, will pass the title!
In 1867 the government sold the salt, and sold it to pay its
troops. That was the trouble. 1 have observed that most
seizures, sacks, and pillages were made by troops that had
not been paid. That was the usual resource of the Spanish
troops of Alva and the Duchess of Parma in the Netherlands.
When their pay was behind and they could not wait any
longer, they took a city and plundered it. The people called
such an atfair ^a Spanisli fury.' In this case the city of Tehuan-
tepec on the 7tli of Janujiry 1867 was sac^ked and burnt, and
the population driven to the woods, Simonson's property going
with the rest, and Woolwi<h's store suffering particularly.
So the cargoes of salt were sold off in lots to pay the troops,
and finally closed out to one purchtiser. In my opinion the
claimant is entitled not only to 1,000 cagas, but one-half of
6,666 cagas, at their value, with 6 per cent interest."
It appeared that the salt was delivered by the imperialists
to the claimant in repayment of money which he had advanced
WAR CLAIMS. 3725
to them. The umpire, Sir Edward Thornton, held that under
tlie circumstances the Mexican authorities were justified in
seizing the salt in (juestion, and that the Mexican Government
could not be made responsible for the loss alleged to have been
suffered by Simonson.
U. U, Simonson v. Mexico^ No. 643, convention of Jnly 4, 1868, MS. Op.
IV., 619.
"In the case of ^Prosper Carpietfe v. Mex-
Carpiette's Case, ieo,' No. 817, the umpire is of oi)inion that
the Mexican Government had a perfect right
in the first instance to seize the goods for which the claim-
ant demands compensation, because there is no doubt that
they originally belonged to and were sold by the enemy,
a fact of which the claimant could not have been ignorant.
They were sold, too, so short a time before the enemy was
forced to evaluate the City of Mexico that there can be little
doubt that the sale was effected because the enemy foresaw
the occurrences which were about to take place. Indeed, this
is more evident from the nature of the goods themselves, which
had been used for a hospital, and which certainly would not
have been parted with if the enemy had supposed that he was
still likely to hold the capital for some time. There was nothing
retroactive in the decree issued by the Mexican authorities.
It merely declared the fact already known tointernatitmal law
th;it property thus having belonged to the enemy and having
been acquired from him, under the circumstances above men-
tioned, fell to the conqueror. The claimant was invited by
the Mexican authorities to prove the innocent character of the
proj)erty which he had purchased. He failed to do so, but
preferred to appeal to this commissidn. The umpire consideis
that he thus neglected to avail himself of the remedy which
was before him, and has no right to be heard before this com-
mission."
Thornton, nmpire, June 16, 1876, convention of July 4, 1868, MS. Op.
VI., 4&'>.
Claimant kept a hotel in Mexico, at which
wuiifl'sCase. the wife of a French general boarded. In
September 1860 this officer was killed, and
his widow got in arrears for board to the amount of $120.
These arrears certain French officers then present paid by
the delivery to Willis of four saddles and live reams of
paper. Not long afterward the French were driven out of
^
3726 INTERNATIONAL ARBITRATIONS.
the city, and the Mexican forces demanded the delivery of .the
saddles and paper as enemy's property. Claimant declineti
to deliver them up, and they were taken from him; and on the
10th of April 1867, apparently without any judicial trial, he
was fined $500 for secreting enemy's property. He declined
to i)ay this fine and a levy was made on his property to satisfy
it. The commissioners having differed in opinion, the umpire,
Sir Edward Thornton, decided that the claimant was justified
in receiving the saddles and i)aper for the payment of a debt
legally due to him, and that there was no evil intention on his
part and no attempt to conceal the i>ossession of the property.
The fine was unjust in itself, and was rendered more so by the
manner in which it was levied, claimant not having been con-
demned to pay by a court of justice, and not having had an
opportunity to defend himself against the charges on account
of which he was fined. The umpire awarded the amount of
the original debt, and of the proceeds of the property, with
interest.
Stillman D. Willis v. Mexico, No. 89, convention of Jnly 4, 1868, MS. Op.
III. 161; IV. 587.
"The claim is on account of the seizure of
Brach'sCase. a debt due by Guadalupe Gonzales to the
house of Brach, Schonfeld & Co. This debt
was seized by Col. Servando Canales, who was then gov-
ernor of the State of Taniaulipas, on the ground that it was
due to the above-mentioned house established in Matamoras,
then occupied by the enemy. It amounted to $7,129.15. Now
it was no fault of the neutral house that the enemy had
occui)ied Matamoras, and that lie found the house established
there, and that it continued to do business there, which it had
certainly a right to do. The debt of Gonzales was property
belonging to the neutral house, which the Mexican authorities
had no right to seize. They had not even the excuse that it
was found in territory occupied by the enemy."
Thornton, nmpire, Rudolph Brach y, Mexico^ No. 462, convention of July
4, 1868, MS. Op. VII. 455.
^' In the case of Catharine J. Johnson, execu-
aseo e ames ^^..^^^ -^^^ ^^^^ ^^^ memorial alleged that the
claimant's testator was the sole registered
owner of the British schooner James Douglas, which vessel,
while on a voyage from Cuba to New York, met with disaster
whir.h led to her being abandoned by the master and crew;
WAR CLAIMS. 3727
that she was subsequently fallen in with by a United States
vessel of war, which took her into the port of Beaufort,
North Carolina, where she was appropriated to the use of the
United States Government; that on application to that gov-
ernment for her restoration the Secretary of the Navy gave
directions that the vessel be surrendered to her owner on his
renouncing all claims for the use of the vessel by the United
States; that, notwithstanding these orders, the vessel had
never been restored to her owner, but was still in the port of
Beaufort under the control of the officials of the United States.
The claimant claimed damages $7,000 besides interest.
**The proofs showed that after the vessel was brought into
port, and before any claim was interjwsed on behalf of her
owner, some use had been made of the vessel by the Navy De-
partment; that the claim of the owner was interposed through
the British legation, and that the United States Government
at once offered to surrender her on payment of a reasonable
salvage to the officers and crew of the vessel which brought
her in. Some objection being made to the payment of the sal-
vage asked, the United States Government directed her sur-
render without salvage, on the claimant's waiving claim for
compensation for the use that had been made of her while in
port. No objection was made to this condition, and no further
claim was ever advanced by any person for the vessel. She
remained lying at Beaufort waiting requisition of her owner,
and nothing further was ever heard of the matter until the fil-
ing of the memorial before the commission.
'*The commissicm (Mr. Comnussiouer Gurney dissenting)
made an award in the following words:
" * We think it does not appear that the United States appro-
priated the vessel, and we regard it as yet being the claimant's
property. The claim is therefore disallowed.'"
Am. and British ClaimM CotnmiHsion, treaty of May 8, 1871, Art. XII.
Hale's Report, 172.
"The claimant, a native of Scotland, hav-
Henderson's Case, ing come to the United states in 1850, a cul-
tivator and dealer in cotton, in the parish of
West Feliciana, Louisiana, owned 112 bales of cotton, which
were stored on the Bienvenue and Carmina plantations, Lou-
isiana, and were seized by the United States Army, under
the command of Major-General Banks, on the 10th and 12th of
3728 INTERNATIONAL ARBITRATIONS.
June, 186.'^, and were used by him for the construction of forti-
fications during the siege of Port Hudson.
"Receipts were given by the quartermaster of the United
States Array for said cotton.
" The petitioner claimed $25,710.12 and int^^rest, taking the
rate of 51 cents per pound, which he gave evidence to show
was the market vahie of such cotton in New Orleans at the
time of seizure.
'• Her Majesty's counsel contended that the claimant waa
entitled to compensation, as the Constitution of the United
Staters prescribed that no person should be deprived of his
l)if)perty without due process of law, nor shouki private prop-
erty be taken for public use without just compeusation.
"The United States counsel argued that the cotton had been
taken for strictly military use in the enemy's country, and that
it stood on the same footing as timber cut for military roads or
growing crops destroyed by the necess:»ry passage of an army,
and that the United States were not bound to give compensa
tion. He also jminted out that Mr. Converse, of whom the
claimant had purchased part of this cotton, had only paid ten
cents a pound for it in (Confederate currency in January, 1862,
and that at that time no considerable depreciation of Confed-
erate currency below gold existed.
"C-ommissioners Gurney and Corti signed an award of $7,914
gold in favor of the claimant."
Henry Henderson v. The I'nitvd *s7rt/f«, No. 41, Am. and Br. Claiuis Com.,
Treaty of May 8, 1871; Howard's Keport, 40, 3^5, 368. See also Hale's
Rciport, 44.
Biflflentinff ODinioii ^^^' ^^^'^'^^^ *^^ Ignited States commissionor, filed the
following diHscnting oi)inion:
^'Henderson, in whose behalf (treat Britain makes this claim, is a Brit-
ish Hubject by birth, and has taken no steps towards becoming nataralized
in this or any otlier country. He became domiciled near Port Hudson, in
the parish of West Feliciana, in 1850, employed in cultivating and dealing
in cotton, and has ever since resided there. Tliere is no room to doubt
that it was his voluntary and permanent domicil. It is not even alleged
that he maintained a personal neutrality durin«^ any iieriod of the rebel-
lion, and there is no proof whatever of that fact. In June, 1863, he owned
in that neighborhood 112 bales of cotton. After twenty-seven days of
eflbrt, by continuous fighting. General Banks, commanding the United
States forces inve.sting the fortified town of Port Hudson, held by rebels,
found himself unable to carry the works by assault, and thereupon com-
menced a regular siege of the place. Cotton found in the neighborhood,
including Henderson's, was, without discrimination, seized by the United
States forces and used almost exclusivelv in the construction of fortifioa-
WAR CLAIMS. 3729
tiODS, a pnrpo8<^ to which cotton in bales is known to be well adapted in
the emergencies of a siege. The officef who took Henderson's cotton gave
papers as follows :
** 'Received, Hienvonne plantation, West Louisiana, from the plantation
of Jed. D. Smith iifty-ono (51) bales of cotton by order of Colonel S. B.
Holabird, seized by order.
*'*T. K. Fuller,
***Capt. 75th N. Y. Vols., A. A. Q, M.
"'Junk 10, 1863."
"MUNK 12, 1863.
•* * I have taken, by order of Colonel S. B. Holabird, for the United
States Government, 133 bales of cotton from the Carmina plantation, West
Louisiana.' (Signed as above.)
**The fortifications and works of the besiegers were extensive, being
equal to acontinuons line of over seven miles. After the fall of Port Hud-
son, the cotton was gathered u]), cleaned and sold, and the proceeds ap-
plied to the use of the troops of the United States.
''Under these facts, the majority of the commission determined that
Henderson has a valid claim against the United States for the value of
his cotton, and an award is made in favor of (treat Britain accordingly.
I can not join in this award; and the principles of public law involved in
it and contravened by it seem to me so very important and so well settled
that I feel it my duty respectfully to state the reasons which control my
action now, and may control it in other cases:
" 1, That a foreigner domiciled in the United States, voluntarily remain-
ing in a hostile part of it in rebellion against it, that part recognized by
the country of his origin as a belligerent, thus choosing to trust himself to
its protection — thus being, in law, an enemy of the United States, without
even pretending that he was in fact neutral, may be recognized as entitled
to maintain a claim against it for property appropriated by its invading
armies, when no citizen of the United States could, under like circum-
stances, claim such consideration, is a proposition to which I must enter
an earnest and emphatic dissent. I state it, but I will not argue it. If
it has any support in i'quity, justice, or the public law, then I am greatly
in error.
" 2. The cotton was the property of an enemy of the United States, so
recognized by every writer upon international law, and so held by all
tribunals, both American and British, as well as international, in every
reported case involving the question. The mixed commission, constituted
under the convention of 1853, between the two countries, so held in Lau-
rent's case. Indeed, it went further, and held that an unnaturalized
Englishman, voluntarily domiciled in a country at war with the United
States, was not even to be regard(^d as a British subject — thus going a
little too far, as 1 think.
" But the property of Henderson was as liable to capture as the prop-
erty of Jefferson Davis himself, or any rebel in arms. I believe this is
not (juestioned. That the i>roperty it«elf was a proper subject of capture
on land under the modern rules by which civilized nations govern them-
selves in war, seems to m<> to bt* quite as clear.
" The legislation and the known practice of the rebel authorities made
it so. rhey made cotton the basis of their public credit, by a policy
3730 INTEKNATIONAL AR1UTKATION8.
%rhi<rh akme<i to deal largely in it ou government arcoant — ^to porehaae it
ttveii l>«'fon* it w;m grown, and hyi>otherat«* it as secnrity for the payment
of loan!», with the proceeds of which they did. to a large extent, supply
theniftelves with arms and munitions of war, and with a fleet of armed
vesHi'ltt to infest the o<e*an and destroy AmtTiran romnierce. They com>
mitt^d it to the tiames, whether owneil by friend or foe, rather than per-
mit it to reaih the markets of the world otherwise than through their
own portH — thns (*ud«*avortng by warlike operations to secure to them-
H<*IveH a iiionoi>oIy in nupplying tli«' foreign demand, that they might
thereby constrain nations abroad to aid them in their struggle. In short,
cotton was a special and toruiidable foundation of the rebel military
power. It was more important than arms or ships of war, for it supplied
thcM* and all else besides. It was more potent than gold, for it not only
eomniande<l gold, but it Iar;;ely enlisted in behalf of the rebels the inter-
est of foreigners, whose manufacturing industry was in a measure para-
ly/e4l, because this staple was needed to keep it in motion. The necessities
and jinrposes of war, therefore, re<|uired its capture at every opportunity
more imperatively than the capture of munitions and implements of war;
indeed, that necessity was quite as pressing and certainly as humane as
the killing of men in battle, tor it was no less etheient as a means of
accomplishing the subjugation of the rebel armies and reestablishing the
national authority. It is to me astonishing if there is a difference of
opinion upon this subject.
'*The Supreme Court of the United States, re<-ogni/ing to the fullest
extent all the limitations which the practice of nations has lately en-
grafted upon the right of capture upon land, so held in the case of a loyal
American widow. (See the case of Mrs. Alexanders cotton, 2 Black.) This
is high authority, especially when it is remembered that that august tri-
bunal has certainly exhibited no tendency whatever to give undue license
to military authority or warlike operations. Complaint, if any, has been
altogether in the other direction. Hut I would be quite content, in the
absence of any authority, to trust the question with the common sense of
all civilized nations, so long as war, in any form, shall be recognized as a
lawful method of deciding differences. If the capture was rightful by
the laws of war, it would be a novelty in international law that its exer-
cise involves an obligation to make compensation.
**3. Hut another point remains, which in my Judgment is absolutely
ccmclusivo against anj- award ou account of this claim, if the rules of
iuternational law should control the determination of the question. Hen-
d<uson was voluntarily and permanently domiciled in one of the rebellious
States — the territory held by the so-called Confederate States recognized
by (ireat Hritain as a belligerent. Hy that act of recognition all British
subjects were bound. If they chose to remain in that part of the world,
they voluntarily took the chances of war and entrusted their interests to
the protection of that organization. They must look to it for protection
from the results of war; and now that it has, by the fortunes of war,
been exterminated, the country of their origin has no right (save possibly
in exceptionally flagrant <'asea) to intervene in their behalf, as against
the Cnited States for indeinnilication. This, I think, is as clearly estab-
lished as a rule of international law as anything can be. It was so held
in Laurent's case, mipra. It wa« so declared by the American Secretary of
WAR CLAIMS. 3731
State Id reference to the bombardment of Grey town, and was then as-
sented to by the English Government nnder the advice of the law officers
of the Crown.
''The attorney-general on that occasion declared in Parliament that
ereryJiirUt admitted it. He said ' the principle which governed such cases
was that the citizens of foreign states who resided within the arena of
war had no right to demand compensation from either of the belligerents.'
(See Wheaton, International Law, 173, note by Lawrence.) This rale is
so much in the interest of the peace of nations that it should be stead-
fastly maintained.
''A right to interfere is so intimately associated with the duty of doing
so that any relaxation of this principle would bnt multiply occasions of
war and afford too many opportunities for that armed intervention in
the quarrels of others which is sometimes sought in vain by ambitious
rulers."
'^The claimant alleged that he was boru in
Ward's Case, the parish of Ballamquord, county of Galway,
Ireland; that he resided in the city of Rich-
mond, Virginia, fiom the 13th of April 1861 until July 1863,
when he went to Wilmington, North Carolina, and remained
there until after the close of the war. Wilmington was cap-
tured by the United States Army, under Major-General Scho-
field, on the 22nd of February 1865.
<' Claimant alleged that on the 3rd of March 1865 he was
owner of two bales of first class cotton, weighing in all 1,005
lbs., and that they were worth at the rate of fifty cents per
pound at the time they were taken.
*'He alleged that on the above-men tionied date one P. C.
Hayes, a lieutenant-colonel and provost- marshal of the United
States Affiiy, took the two said bales from him, and that they
were used for beds in the United States hospital for the com-
fort of the sick soldiers belonging to the United States Army.
He also alleged that he had never taken any steps towards
being naturalized in any other country than that of his birth,
and that he had remained neutral during the war.
<'He claimed $507.50 as indemnity for his losses.
''In support of his allegations he filed an affidavit of a cer-
tain Sarah Ward, who therein states that she saw the two
bales of cotton taken, and reported the fact to Major-General
Schofield, United States Army, who gave her a letter to
Dr. Plunkett, the hospital sur«i:eon, ordering the latter to give
a receipt for the two bales taken from Thomas Ward.
"She annexed to her aftidavit the original receipt which she
alleges was given her by the said Dr. Plunkett, and which is
in the following form :
5627— VOL. 4 32
i
3732 INTERNATIONAL ARBITRATIONS.
" ' Office, Pro vost-Mabshal-Gbnebai.,
'^^Wihningtony North Carolina^ March 3j 1865.
"< Received of Thomas Ward two bales of cotton.
"'P. C. Hayes,
'^^ Lieutenant' Colonel and ProvostMarshaUOeneralj
" * United States Army.
"<The above cotton was used for beds in this hospital for
the comfort of the sick (2nd division hospital, 23id army
corps), amounting to 625 lbs., 480 lbs.
"*F. O. Plunkett,
^^^ Assistant- Surgeon/^ etc.
(Indorsed:)
"'Wilmington, March 11^ 1865.
<<< Respectfully referred to Superintendent Special Agent.
"^B. L. Hayes,
^^^ Treasury Agent^ B. B. GeneraV
'^As to nationality, claimant files a certificate given to him
by the acting British consul at Richmond, dated the 12th of
August 18G2, to the effect that he is a British subjex^t and
has never forfeited his allegiance to the Queen of England.
"As to neutrality, he filed a pai)er, dated Wilmington, North
Carolina, September 4th, 1863, and signed ^Robert S. Radcliffe,
captain,' etc., and in which paper the words 'T. Ward, ex-
empted,' are written.
^^The United States agent immediately after the memorial
and accompanying paper were filed made a motion to dismiss
the case for insutficiency of proof, and took some exceptions
to the testimony.
"These motions were overruled by the commissioners, and
as the United States agent raised the same objections in his
final brief it is not thought necessary to report on said motions.
"The claimant oft'ered no other testimony than that already
described, which accompanied the memorial, and the United
States filed no proof at all against the claim.
"When the claim came up for final hearing the United
States contended :
"Firstly. That the affidavit of Sarah Ward was simply an
ex parte affidavit, taken before a notary public in Richmond,
and was not such a document as the thirteenth article of the
treaty bound the commissioners to receive and consider.
"Secondly. That the certificate of the British consul at
Richmond as to the nationality of the claimant was not com-
WAR CLAIMS. 3733
petent evidence, as tbe iuforination on which he relied to base
his certificate was not shown.
"Thirdly. That the certificates of Lieut. Col. Hayes and
Dr. Plunkett were not evidence to prove the facts therein
stated, as it should have been no part of their duty to give
such receipts, and it was not shown why they did so.
" Fourthly. That the memorial could not be considered com-
petent evidence to prove the claim of the petitioner; that it
was sim[)ly his pleading to be supported by proofs.
'^Fifthly. That there was no proof of the value of the cotton.
" Sixthly. That there was no proof of the title of the claimant
to the cotton, such as evidence of purchase, etc.
" Oer Majesty's counsel argued —
"Firstly. That the receipts filed by claimant were the very
evidence furnished him by the United States officials at the
time of taking the property, and that no proof had been
brought by the United States to show either that they were
not genuine or that the officers who gave them did not have
the authority to do so.
"Secondly. That the affidavit of Sarah Ward was such a
document as should be considered by the commissioners.
"Thirdly. That the certificate of the British consul at Rich-
mond was given in the due course of his official duty as consul,
and is entitled to all the presumptions which attach to such an
official act, and makes a sufficient case, prima facie, that the
claimant is a British subject.
" The commissioners rendered the following decision:
"^No. 1.— Thomas Ward r. The United States.
" * Without expressing any opinion on the effect to be given
to the evidence of Tiiomas Ward and Sarah Ward, the com-
missioners are of opinion that the re(5eii)ts and vouchers given
by acknowled<»cd officers of the Army at the time show that
the cotton was taken from the claimant for the use of the
United States. Tliis we think sufficient, in the absence of all
countervailing proof, to show the taking by the United States.
Nothing appears to indicate that it was taken as enemy's
property, and the question of the right so to take is therefore
not involved. It was taken nine days after the capture of
Wilmington, North Carolina, by the United States, and the
possession of the place ever after continued in the United
States. We are not, upon the facts before us, prepared to
hold that, at the time ot the taking of the cotton, the place
was enemy's territory. We agree, therefore, that the claimant
^
3734 INTERNATIONAL ARBITRATIONS.
is entitled to C/Ompenantion for the i>roperty, the amoant being
the average value of cotton usually produced in that neighbour-
hood, with interest at six per cent per annum untilJanuary
3l8t, 1873.
"* We therefore award that the sum of $620.44 be paid by
the (lovernment of the United States to the Government of
Iler Britannic Majesty in respect of the claim of Thomas Ward.
'^'L. COETI.
*^*russbll guenby.
^'' James 8. Frazbe.'
" It will be seen by the above opinion that the commissioners
awarded the claimant interest at the rate of six per cent. With
very few exceptions interest at the above rate was included
in all the awards made thereafter."
Thomas Ward v. The Uniifd SiaieSy No. 1, Am. and Br. Claims Commis-
eion, Treaty of May 8, 1871, Howard's Report, 36, 359, 360. See also Hale's
Report, 41.
''In the case of James Crutchett, No. 4^
Cratohett's Case, claim was made for the use and occupation of
a factory building of the claimant in the city
of Washington, which was, from July 1861 to the end of the
war, occupied by the United States as barracks, quarters, and
offices for troops and f)fficers, and also for large resulting dam-
ages to the claimant's business by this occupation of the
buildings and removal of the machinery, &c.
''The proofs showed that the premises were taken possession
of by the United States under the right of eminent domain
for military use, and that partial payments of the rent had
been made to the claimant, who had been for many years
domiciled in the city of Washington.
"The counsel of the United States filed a demurrer to the
memorial, specifying, among other grounds, that the claimant
and liis property, thus domiciled and situated, were subject to
the exercise of the right of eminent domain over the property
by the United States; and that for the exercise of such right
and the occupation of the proi)erty full compensation c uld
be had by the claimant under the municipal laws and authority
of the Tnited States; and that such acts were, therefore, not
the subject of iuternational reclamation.
"On the argument of the demurrer the counsel for the
United States contended that the claimant, domiciled within
the United States, was subjei^t to all the burdens and liabili-
ties of other inhabitants of those States, and could claim no
WAR CLAIMS. 3735
better position or superior rights in regard to the United States
than a native-born or naturalized citizen of those States. That
for the occupation of his premises lie was entitled, under the
Oonstitution of the United States, to compensation, and that
the Court of Claims had full jurisdiction of the case and could
have afforded hiui full redress.
"The counsel cited the letter of Earl Granville to Mr.
Stewart (No 23 of parliamentary i)aper8, No. 4, on the Franco-
German war, 1871, British state papers); Professor Bernard's
* Neutrality of Great Britain,' etc., pp. 440, 454; also, the note
of Mr. Abbott (Lord Tenterden) relating to this identical claim
of Mr. Crutchett, id. 456 ; also, the case of William Cook before
the commissioners under the convention of 1853 between the
United States and Great Britain (United States Senate docu-
ments, first and second sessions, Thirty-fourth Congress, vol.
15, No. 103, pp. 169, 463); also, the case of the United States
V8. O'Keeffe, in the Supreme Court of the United States (11
Wall. 178); and the cases of Waters (4 C. Cls. Eep. 300);
Russell (5 id. 120); Filor v. United States (9 Wall., 45); also,
Campbell's case (5 C. Cls. Rep. 252), and Provine's case (id.
465).
"On the part of the claimant it was contended that, while
the claimant was entitled to compensation for the use of his
property under the Oonstitution of the United States, the
jurisdiction of the Court of Claims in the case was taken away
by the act of Congress of July 4, 18G4 (13 Stats, at L. 381),
citing Filor vs. United States (9 Wall. 45).
"The demurrer was overruled, and an award was subse-
quently made in favor of the claimant for the value of the use
and occupation, in which all the commissioners joined.
"The case of William H. Lane, No. 9, was a claim for occu-
pation by the United States of a building of the claimant in
Memphis, in 1864 ; that of Eleanor W. Turner, No. 34, was a
claim for like occupation of a house in New Orleans by the
United States military authorities; and that of Eliza B. Nel-
son, No. 140, was a claim for like occupation of a building at
Helena, Arkansas; all said occupations being while the re-
spective places were permanently held by the United States.
Awards were made in favor of the claimant in each case, Mr.
Commissioner Frazer dissenting in Nos. 34 and 140."
Am. and Br. Claims Com., treaty of May 8, 1871, Halo's Uoport, 46. The
case of Crutchett is stated in Howard's Keport, 33.
/
3736 INTERNATIONAL ARBITRATIONS.
'^ This wjis a claim of a British subject resid-
Wi]kiii8on*s Case, ing on Matagonla Island, Calhoun County,
State of Texas, for 10,500 pounds of fresh
beef taken from him for the use of the United States Army in
the latter part of 18(53 and the beginning of 1864.
" He claims the sum of 525 dollars currency.
'^ As evidence of his claim he filed three vouchers given to
him for said beef. These vouchers are all in the same form,
and purport on their face to have been given under the order
of the United States Department of War. Two of theiii are
signed by United States Lieutenant S. Wright, acting assistant
commissary of subsistence; the third by United States First
Lieutenant Artemus Adams, acting commissary of subsistence
in charge of depot. On each of them there is an endorse-
ment which is as follows:
" ^ Pay to the order of George McColloch Wilkinson the
within amount.'
" Each voucher is accompanied by an affidavit of the claim-
ant to the eftect that he is the original owner of said vouchers.
"There is another endorsement on these vouchers by A. B.
Eaton, commissary general of subsistence, dated April 25th,
1806, which is as follows:
*' ^This account having arisen prior to the surrender of the
rebel forces in Texas, a State in insurrection, under the deci-
sions and orders governing tiiis oftice, it is without authority
to order its i)ayment until Congress shall, by appropriate
legislation, provide for the same by law.'
" The defense held :
''1. That G. McColloch Wilkinson was evidently the real
owner of the vouchers, and that the claimant could not prose
cute a claim originally his, but which he had transferred to
another party.
" 2. That the claimant being domiciled in the enemy's coun-
try was entitled to no further relief than loyal United States
citizens found resident in the same territory, and that the
decision of the Southern Claims Commission does not bind
Congress to pay claims of this nature.
"3. That Congress would no doubt reverse the decision of
the Southern Claims Commission, admitting (mly claims of
United States citizens, and allow aliens to plead before said
commission.
^^ 4. That the claimant not having claimed interest, it should
WAR CLAIMS. 3737
not be included in any award made in his favor, as the United
States Government never paid interest on similar claims
brought by their own citizens.
" Her Majesty's counsel held :
^^1. That the claimant had presented his claim to the proper
authorities and had been refused payment, not because the
claim was incorrect or fraudulent, but on account of the
existing regulations of the CTnited States War Department.
"2. That the United States Government had provided their
own citizens with a remedy through the Sotithern Claims
Commission for claims of this nature, excluding aliens.
" 3. That the treaty of Washington had provided this Mixed
Commission for the settlement of claims of like nature brought
by British subjects.
" 4. That the claimant was entitled to the whole amount he
claimed, with interest from the date of seizure.
'< The three commissioners signed an award of $782 gold in
favor of the claimant."
John WilkiMon v. The United States, No. 28, Am. and 1^T, Claims Com.,
Treaty of May 8, 1871, Howard's Report, 32, 351, 353. Hale (Report 42)
says: ''In the case of John Wilkinson, No. 28, the claim was for beef
taken from the claimant on Matagorda Island, Texas, by a commissary of
the United States in 1863, and for which yoachers in the usual form were
given. The claimant was domiciled and his property situated within the
insurrectionary State of Texas, and apparently not within the actual
military lines of the United States at the time of the taking. The vouch-
ers were all signed by an authorized officer and recited, ' I have taken for
military purposes from John Wilkinson,' the property described, and that
the same was necessary for the public service, and would be accounted for
in the officer's monthly returns.
''On the part of the TTnited States it was claimed that the taking was a
capture under the right of war, and that no liability for payment arose
against the United States.
''An award was made in favor of the claimant, in which all the commis-
sioners joined.
" The same principle was applied in all other cases of like character.''
^* Claimant alleged and filed evidence to
Braithwaite's Case, prove —
"1. That he was a native of England, and
a resident of the State of Kentucky, United States, during
the whole war.
'*2. That on the Gth of August 1864 a company of United
States soldiers, under the command of a lieutenant, forcibly
took possession of and pressed into the service of the United
#
k
3738 INTERNATIONAL ARBITRATIONS.
States a horse belouging to hiui of the value of $150 withont
oHerini^ him any compensation.
<<3. That it being the croi^piug season, he lost at least $50
more by the seizure of his horse.
''The United States agent, in his brief, stated:
^'1. That the claimant being domiciled in the State of Ken-
tucky, which State had never been declared in rebellion, stood
upon the same footing as native citizens of the United States^
and that the taking of the horse was a seizure from which
clearly an obligation to make compensation accrued on the
part of the United States.
*'2. That at the time of the seizure of his property he could
have presented his claim to the quartermaster-general of the
army for payment, and that having failed to do so, and through
said failure not having exhausted the ordinary remedies given
him by the municipal laws and regulations of the United
States, he had no standing before this international tribunal.'^
The commissioners unanimously awarded $225 in gold.
Jonathan liraithvoaiie y. The United States^ No. 31, Am. and Br. Claims
Coin., treaty of May 8, 1871, Howard's Report, 31; Hale's Report, 42.
In connection with the foregoing case of
Brook's Case. Braithwaite, Hale (Report, 43) says:
"In the case of Samuel Brook, No. 90, th<i
claim was for certain tarpaulins taken by an authorized officer
for the use of the United States, at Memphis, Tennessee, in
June 1862 shortly alter the capture of that city by the Federal
forces.
"An award was made in favor of the claimant, Mr. Gommis-
sioner Frazer dissenting upon the (|uestion of the sufficiency of
proofs, but the commissioners all agreeing as to the principle
involved.
"It may be stated generally that the commission were
unanimous in the allowance of claims for property coming
under this head when taken within the loyal States or within
those portions of the insurrectionary States permanently oc-
cupied by the Federal forces, except when something in the
nature of the property or in tlie conduct of the claimant took
him out of the condition of neutrality. Thus, for instance, in
the case of Robert Davidson, No. (>(>, the claim was for gun
carriages and other artillery apparatus, manufactured by the
claimant for the use of the Confederate Governnjent, and re-
maining in his possession at the surrender of New Orleans,
together with material for use in the same manufacture, which
was taken and appropriated by the Federal forces, under the
orders of General Banks, some months after the capture of
New Orleans. The claim was unanimously disallowed.
" Wheie, however, the taking of the property by the Federal
WAR CLAIMS. 3739
forces and the doiiiicil of the claimant were witliin the enemy's
lines, or in those portions of the enemy's country not reclaimed
from the enemy, the majority of the commission, on satisfac-
tory evidence that the property was taken by authority, or
actually appropriated to military use, made awards in favor of
the claimants, Mr. Commissioner Frazer dissenting, on the
ground that one domiciled in the country of the enemy was
himself an enemy in law, whether an actual enemy or not; and
by well-settled principles of public law his sovereign had no
right in such cases to intervene in his behalf against the ordi-
nary treatment of him as an enemy. In the principle thus
held by Mr. Commissioner Frazer I am advised that the pre-
siding commissioner agreed ; but in view of the fact that the
Unit^ States had, by the establishment of the Southern Claims
Commission, made provision for the compensation of its own
citizens domiciled within the enemy's country ^ who remained
loyal adherents to the cause and the Government of the United
States during the war,' for property taken in like manner (16
Stat at L. 524, § 2) he was of opinion that neutral aliens in
like situation should be entitled to the same degree of compen-
sation, and, if British subjects, to a standing before the com-
mission for that end.
'^UpoD this question Mr. Commissioner Frazer held that any
provision made for the paymei. t of such claims to citizens was
not in discharge of an obligation imposed by the public law,
but was a matter of favor, and could carry with it no obliga-
tion on the part of the Government of the United States to
extend like compensation to others not embraced within the
class which it had selected.
"In the case, however, of John Kater, No. 19, claimant was
allowed for two horses taken by Sheridan's army on its raid
through the valley of Virginia in August 1864, all the com-
missioners joining in this award. General Sheridan's order of
August 16, 1864, directing the seizure of mules, horses, and
cattle for the use of the Army, having in eftect promised com-
pensation for such proi)erty to loyal citizens."
The commercial firm of P^ugene Eochereau
Sooherean's Case. & Co., composed of Eugene liochereau, Albin
Kocliereau, and William T. Hepp, citizens of
Prance, was engaged in business at New Orleans, where the
junior members, who were personally <'.harged with the manage-
ment of the business, resided. Eugene Rochereau resided in
France, and was not personally engaged in the firm's affairs.
In March 1862 the authorities of New Orleans adopted an ordi-
nance by which the mayor was authorized to issue bonds of the
city to the amount of $1,000,000. The object was stated in the
preamble of the ordinance in these words:
"Whereas the safety of the city of New Orleans being imper-
f
3740 INTERNATIONAL ARBITRATIONS.
illed by the existeiice of the war now raginjr, and the presence
of our enemies at the approaches of tlie city renders it of the
greatest iinx)ortance to the vital interest of the city, not only
to the city but to the whole Southern Confedera<;y, that imme-
diate and ample means should be placed at the disposition of
the public authorities to repel invasion, and for the prompt and
efficient defence of the city of New Orleans and its approaches,
be it therefore
^' Resolved,^^ etc.
These bonds the banking house of Abat, Generes & Co., of
New Orleans, purchased to the amount of $210,000, and the
firm of Eugene Rochereau «Jfc Co. purchased of Abat, Generes
& Vo. bonds of the nominal value of $20,000.
After the capture of the city by the forces of the United
States an order was issued by Oeneral Butler by which all the
purchasers of the bonds were required to pay an assessment of
25 per cent. This assessment was levied in August 1862.
Again, in August 1803, a like assessment w as levied by Gen-
eral Banks. The assessment was at first levied upon Abat,
Generes & Co., but subsequently, by order of General Butler,
llochereau & Co. were reipiired to pay to Abat, Generes & Co.
the sum so assessed, and it was then i)aid by the last-named
house to the military authorities, and used for the support of
the destitute inhabitants of New Orleans.
It was contended by counsel for the French liepublic that
the assessment made by General Butler was arbitrary in its
nature and contrary to the rules of international law, and that
the sufferers were entitled to compensation from the United
States. This argument was specitically made in behalf of Eugene
Rochereau, who had i)resented a claim for compensation.
On the part of the United States it was contended that the
purchase by Rochereau & Co. was an act by which aid and
comfort were given to the enemies of the I'nited States within
the period mentioned in the convention.
Two i)oints were made by counsel for Eugene Rochereau:
(I ) That the purchase of the bonds by Rochereau & Co., who
were not the original subscribers, could not be treated as an
act of aid and comfort to the enemies of the United States;
and (2), that as to Kugene Rochereau, who was then in France,
and was not cognizant of the purchase, the act of the resident
partners, even if inhibited, could not be imputed to him. It
was also maintained by counsel for the memorialist that alien
residents and all other persons had a right to carry on their
WAR CLAIMS. 3741
legitimate business, and that the payment of taxes to the
insurrectionary or usurping government had been held by the
Supreme Court of the United States to have been fully Justifi-
able; that the right to trade within the limits of either bel-
ligerent gave the alien resident the right to buy or invest in
the securities of either without a violation of his neutrality;
that the purchase of the bonds of the city of New Orleans in
open market was not a violation of any law at the time; that
the success of the United States in its attack on New Orleans
did not convert acts lawful at the time of their commission into
crimes, and that General Butler had no right to punish
persons for trading with the Confederates at a time when the
United States was unable to enforce its authority and render
protection.
Counsel for the United States called attention to the bond,
which set forth on its face that it was "issued in conformity
with ordinance No. 5949 of the city council, approved 3d of
March 18G2." He maintained that the reference to the ordi-
nance constituted a notice, both in law and in equity, to every-
body to whom the bonds were offered to examine the authority
by which they were issued; and that if Kochereau & Co. had
performed their duty and examined the ordinance they would
have seen that the pur^iose for which the loan was offered was
the defence of New Orleans against the United States. In sup-
port of the position that the iMirchaser was bound, upon sug-
gestion of record, to examine the title to. property which he
proposed to jiurchase, and that if he neglected to make the
examination he had no remedy over against the vendor, coun-
sel for the United States cited Brush v. Ware, 15 Peters 93;
Oliver v. Price, 3 Howard, 409, and Hanover v. Woodruff, 15
Wallace, 439-442.
The commission on December 15, 1883, rendered an opinion
as follows :
"The claimant was in France when the bonds for the de
fence of New Orleans were issued and purchased by the part-
ners of his lirm in N<^w Orleans.
" He had no knowledge thereof till he was informed that
(leneral Butler had imposed the assessment on his firm.
"We think the claimant was not guilty of giving aid and
comfort to the enemies of the United Stiites, as he knew
nothing of tlie purchase.
" In the judgment of the majority of the commission Genera)
Butler had the right, as an act of military necessity and in
time of war, to levy the assessment on the enemies of the
3742 INTERNATIONAL ARBITRATIONS.
United States and on those giving aid and comfort to the
enemies of the United States.
" The commissioner on the part of France does not concur
in the view of General Butler's power as regarded by his col-
leagues.
'< We fillow the claimant the amount of his share of the
assessment paid August 11, 18G2, being $714.28, with interest
at T) x)er cent from August 11, 18G2, and the further sum of
$714.28, with interest at 5 per cent from September 7, 1863."
Eugene Jiodureait v. United Slates, No. 220, BoutweU'e Report, 124, com-
misHion under the conventiou between the United States and France of
January 15, 1880.
"Charles J. Dubois v. United States, No.
Gem of Dubois. 723. — This claim rested upon the same facts
as that of Eugene IJochereau v. The United
States, No. 220, with the exception that the memorialist was a
resident of the city of New Orleans, and there purchased the
bonds issued by said city.
"The claim of Dubois was disallowed.
"The decisions of the commissioners in the two cases justify
the conclusion that the purchase of the bonds of the city of
New^ Orleans, issued in the manner and for the purpose set
forth in the record, was an act of aid and comfort to the ene-
mies of the United States, but that those purchasers only were
responsible who had knowledge of the transaction at the time,
and whose circumstances were such that they were bound to
make an examination of the record of the city of New Orleans.''
(BoutwelFs Report, 128.)
"Arthemis Drez r. United States, No. 503. —
Case of Drez. This case is distinguishable from the cases of
Eugene Rocherean v. The United States, No.
220, and Charles J. Dubois r. The United States, No. 723, in
the fact that the claimant, a resident and citizen of France,
had an agent in New Orleans with whom he had placed funds
for investment. That agent made a purchase of the New
Orleans bonds issued under the ordinance of the 3d of March
1862. When Drez received information from his agent that
the purchase had been made, he instructed him to sell the
bonds. It does not appear from the record whether his in-
structions were due to the oi)iiiion that the investment was an
unsafe one or to the opinion that the bonds were not a proper
subject for investment.
" It was claimed by the counsel for the memorialist that the
WAR CLAIMS. 3743
decision in the case of Eochereau v. The United States, No.
220, justified and reqaired an award in favor of the claimant.
"On the part of the United States it was claimed that the
agents of Drez were clothed with general power to act, and
that the principal was bound precisely as he would have been
if present.
*' The commission made an award to the amount of the
assessment imposed by the military authorities." (Boutwell's
Eeport, 128.)
W., a citizen of the United States, "domi-
wmetTiCase. ciled" in Venezuela, held a lease of a ware-
house at Caracas, in which he conducted a
mercantile business. In 1859 the government set up and sup-
ported by the Unionists, in order to defend itself against the
Federalists, who were trying to get possession of the capi-
tal, occupied the warehouse in question and converted it into
a kind of fort, and continued in possession of it for several
years, destroying or consuming in the meantime everything of
value in the building. Apart from a small sum for use and
occupation, and a draft which was not paid, W. received noth-
ing from the government. On a claim for indemnity the fol-
lowing decision was rendered:
"Objection was taken by Venezuela based upon the propo-
sition that the warehouse was lawfully seized and occupied by
her military forces for defensive purposes, and that the subse-
quent pillage and destruction of the stock of goods was a
necessary and unavoidable incident of such seizure and occu-
pation, and that the damage occasioned by it in consequence
must be treated as damnum absque injuria^ and therefore
remediless. In this view we do not concur. Admitting fully
the doctrine that the safety of the state is the supreme law,
and that the property and person of the citizen are subject
to be taken for the public service whenever the exigency is
sufficient tojustify it, of which the state itself, by the necessity
of the case, must be the only jud<?e, yet we can not perceive
that there was any necessary connection between the seizure
of the warehouse for purposes of defence and the consequent
pillage and destruction of the property which ensued. Besides,
while the seizure of the building was lawful in the first instance
for the purpose of repelling an attack or guarding the arsenal,
which was m the near neighborhood, no reason has been
assigned for its continued use and occupation as barracks long
after the emergency had ceased to operate.
"The (xovernmeat of Venezuela recognized the justice of
this proposition by admitting a claim on this account, and
3744 INTERNATIONAL ARHITRATIONS.
inakinpT payment in part. Indeed, we believe that such claims
are universally recognized as constituting exceptions to the
general rule which protects governments from making indem-
nity. It was also contended that a citizen of one country
(lomiciled in another could have no greater rights than the
citizens of the country where he chose to cast his lot; and that
as a citizen of Venezuela would have had no claim on the
justice of his government for reclamation in such a case as
this, neither could the original claimant, who was a citizen of
the United States. But from what we have said there ought
to be no doubt that the Government of Venezuela would have
respected such a claim if made on the part of one of her own
citizens, and therefore the contention assumes what we do not
admit to be true. On the whole, therefore, we are of the opinion
that an al]owan<*e ought to be made in this case on the basis
heretofore laid down; that is to say, for 50,000 pesos, on which
we will allow interest at 5 per cent from the 2d of August
1850, deducting, of course, whatever sum Venezuela has paid
on account of any of the certificates founded on the original
award. The peso will be estimated at seventy-five cents,
expressed in the gold coin of the United States of America.''
Findlay, commissiouiT, for the <'oinmi88ioii, Fntate of William E. Willei
V. Veneziielay No. 21, United States and Venezuela Claims Couimission,
convention of Deceinbrr 5, 1885.
**The claimant, a Colorado corporation,
aseo e , ^^^^ j^y^j-j^ ^i^.j^ \^ received from the American
& Co.
Bank Note Company, a New York corpora-
tion, tor carriage to the city of Linv.i, Peru, 28 cases, said to
contain valuable stationery, to be delivered to the order of
Messrs. IMevost «.^' Co., Lima, Peru, the agents of said American
Bank Note Company, the contents of said cases being valued
at 8.*>4,700; that said cases were duly forwarded to Peru, and
while otf the i)ort of Chiml)ote, on the 17th of September 1880,
the Chilean corvette CliacabKco took the said 28 cases by force
from the vessel on which they were ship])ed. Protest was duly
made before the U. S. consular agent at Chimbote. Twenty
four of said 28 cases contained forms or emblems of paper
money, and 4 contained ])Ostage stamps; that said property
had not passed to the ownership of Peru, but remained in the
Bank Note Comi)aiiy until they were received and jurcepted
by the authorized officials ot said republic; that by reason of
said seizure claimant was com])elled to make payment to the
American Bank Note Company ot the value thereof, $34,700,
and received an assignm<Mit and subrogation of the said com-
pany's interest in the i)roperty so seized. The claim was duly
made through the State l)ei)artment of the United States; that
WAR CLAIMS. 3745
the emblems and forms of paper money thus seized by Chile,
aggregating over 7,000,000 soles, were put in enforced circu-
lation in Peru by Chile, who required all persons to accept such
money at its full face value in exchange for supplies, goods,
and property used by the forces of Chile; that a similar case
of money destined for Chile was seized in transit by the forces
of Peru, but on demand by the Government of the United
States the property was returned by Peru and delivered to
Chile by claimant.
'^ Claimant asks judgment for the value of said property and
interest, amounting in all to $58,389.97.
"By stipulation, signed by the agent of the Republic of
Chile and the agent of the United States, at the request of the
claimant, a compromise award was entered in this case in the
sum of $29,194.98, United States gold coin."
WellSf Fargo 4' ^o- v. ChiUf No. 10, Uuited States and Chilean Claims
Commission, convention of August 7, 1892. Shields's Report, 74.
4. Captuebd and Abandoned Property.
"Claims for property taken under theaban-
^^ **'iM8^^ ^^ doned and captured property act of March 12,
1863 (12 Stats, at L. 820) :
"This act provided in effect for the turning over of property
captured or seized as abandoned by the militarj' and naval
authorities of the United States to agents, to be api)ointed by
the Secretary of the Treasury, for the sale of such property,
and the payment of the proceeds into the Treasury; and pro
vided that the owner of such ])roperty might, within two years
after the suppression of the rebellion, bring suit for the pro-
ceeds in tlie Court of Claims, and, on proof of his ownership
and right to the proceeds, and that he had never given aid or
comfort to the rebellion, should be entitled to recover the net
proceeds. The act was undoubtedly intended to apply partic-
ularly to cotton and the other staple products of the South-
ern States. To such products only it was in practice applied.
" Many claims were brought before the commission for prop-
erty, i)rincipally cotton, taken under this act. Most of the
claims thus brought had been prosecuted in the Court of
Claims, some of which were still pending in that court; some
were pending on appeal in tlie Supreme Court; in some the
Court of Claims had given judgment in favor of the claimants
for the net proceeds, the claimants now claiming here that such
3746 INTERNATIONAL ARBITRATIONS.
amouut was less than the full value of their property, to which
they claimed themselves entitled; and in some judgment had
gone against the claimant in the Court of Claims, and no ap-
peal had been taken. In some cases the cLainiants were domi-
ciled within the insurrectionary States, and in others within
the Hritish dominions. In a few cases no suit had been prose-
cuted in the Court of Claims. The agent of the United States
interposed demurrers in several ijases, including all the differ-
ent classes above named.
" On the argument it was contended for the
T^ted Stat ^ United States that the right of capture, by a
belligerent, of private enemy's property on
land was permitted by the laws of war; that that right was
specially applicable to the case of a great staple like cot-
ton, upon which the enemy principally depended for his mil-
itary and naval supplies, and for his credit and means to
carry on the war; that by the abandoned and captured prop-
erty act of I2th March 18G3 the United States had in no re-
spect abandoned or waived this right, but that that act con-
stituted merely an act of grace in favor of individuals who
might show themselves personally free from complicity with
the rebellion; that under that <act neutral aliens stood upon
the same footing with loyal citizens, and were entitled to the
same rights given to such citizens by the act, and subject only
to the same disabilities; that the owner of property thus ax}}-
tured within the enemy-s country had no right of reclamation
against the United States, except that given by the act, and
that that remedy must be pursued in the form given, and before
the tribunal specified in the act.
" He cited Vattel, book 3, c. 9, §§ 161, 163, 164; Twiss, vol. 2
(war), pp. 122 to 124; Eutherforth, book 2, c. 9, § 16; Mrs.
Alexander's Cotton, 2 Wall. 404; the United States r. Padel-
ford, 9 id. 531; the United States r. O'Keefle, 11 id. 178; 1
Kent's Com. pp. 92, 93.
*' On the part of Her Majesty's counsel rep-
Argamen or rea j,^gg,jfi„o- the claimants, it was Contended —
Bntain. ® '
'' 1. That the personal property of the inhab-
itants of the insurrectionary States, whether citizens or aliens,
neither by its locality nor by its character as product of the
soil, was the lawful subject of captuie as prize and booty of
war.
<* 2. That in this respect the article of cotton is not distin-
guishable from other property.
WAR CLAIMS. 3747
"3. That the Government of the United States has never
claimed or asserted title to such personal property as prize and
booty of war, bat, on the contrary, by legislation has impliedly
disclaimed such title.
*< 4. That the property for the destruction or appropriation
of which these claimants demand indemnity never ceased to be
their property, but continued such, notwithstanding the fact
of war and the fact of seizure or appropriation by the military
authorities of the United States.
"6. That their right to be indemnified for such seizure or
appropriation does not depend in any degree upon any munici-
pal legislation of the United States either recognizing the
right or providing a remedy complete or partial, but rests upon
principles of the public law, recognized as well by the United
States as by all other civilized nations.
**6. That therefore the act of March 12, 18G3, neither gave
any right which the parties had not before by settled princi-
ples of public law, nor purported to give a remedy commen-
surate with that right under the public law. That act was
purely a municipal measure, dictated by considerations of
domestic policy.
" 7. That therefore it is wholly immaterial to the determi-
nation of these international claims whether those parties had
or had not a remedy under that statute, or did or did not avail
themselves of such remedy. The Court of Claims in no degree
exercised the functions or fulfilled the duties of this tribunal,
whose obligations under the treaty and the public law must
be discharged acconling to its own judgment and conscience
in cases coming within the treaty, whether the Court of Claims,
in executing the act of 18()3, exercised or not a wholly distinct
jurisdiction conferred upon it by that statute.
*'8. If under that statute the claimant has obtained a par-
tial indemnity, the United States can only claim a credit for
so much of the indemnity as the party has received in that
form. In no other way, and to no other extent, can the pro-
ceedings in the Court of Claims affect the awards in these
cases.
" He cited 1 Kent's Com. 91 ; Mrs. Alexander's Cotton, 2
Wall. 404; United States v. Klein, 13 Wall. 128; United
States V. Padelford, supra; Brown r. United States, 8 Cranch,
110; Grant's Case (decisions C. Cls. October term, 1863); Vat-
tel, book 3, c. 5, § 75 ; c. 7, § 100.
" The arguments of the respective counsel were filed in the
cases of James B. IVlcElhose, No. 225, and of Thomas Ark-
wright, No. 302. Many other cases were submitted under the
same arguments.
" The commission unanimously sustained the demurrers in
the cases in which suit had been brought in the Court of
5627— VOL. 4 33
3748 INTERNATIONAL ARBITRATIONS.
Claims, whether still pending in that court, or on appeal, or
previously decided, and dismissed those cases.
" In the case of Elizabeth Knowles, Xo. 175, and other cases
in which no suit had been brought in the Court of Claims, the
comniissiou (Mr. Commissioner Frazer dissenting) overruled
the demurrers and took jurisdiction of the claims ui>on their
merits. Mr. Commissioner Frazer read a written opinion upon
the fjuestions involved in these cases."
Am. and Br. Claims Commission, treaty of May 8, 1871, Hale's Report,
47. See also Howanl's Report, 45, 48, 370, 375, 383, 394, 404.
The opinion of Mr. Fra/er on tlio cases nndcr the abandoned and cap-
tured property act was as follows*
"The capture or destruction of property on land belonging to indiyidual
enemies is Justified by the modern law of nations, if there be military
reasons for it; in the absence of good military reasons, such captures are
generally without the support of the public law. When such reasons do
exist, such capture or destruction i^, in the nature of things, quite as
proper as the capture or destruction of such property on the high seas.
'*The latt<5r is maintained because an enemy's coumierce and navigation
are ^the sinews of his naval power,' to take or destroy which is, therefore,
a legitimate act of war. (Wheat. Int. Law, J^awrcncc, 626.)
"^The sinews' of his military power on land must, in view of the nat-
ural law, be-e<iually the subject of ca])tuie or destructu)n by an invading
army. Cotton was held to be such by the Supreme Court in the case of
Mrs. Alexander's Cotton (2 Wall. 404). The reasoning of the opinion of
the Chief Justice in that case is, I think, unanswerable.
**The war of the American rebellion was a civil war — an immense one,
too— and the (iovernment ha<l all the rights of war which it would have
had if its eneuiy had been an independent nation. Even the relxd organ
ization was recognized l>y Her Majestj^'s government as a belligerent —
i. «., having the rights of war — and certainly that government is thereby
estopped from denying, and indeed never has denied, tluit belligerent
rights also belonged to the (iovernnn'iit of the United States. Every act
of war recognized as lawful by the public law between independent states
at war was, therefore, lawful on the part of the United States, and in-
volved no cause for reclamation on the j)art of neutrals On- this ground
only, as a lawful belligerent act, could a bloeka<le be maintained. The
subject is discussed very fully by the Supreme Court in the Prize Cases,
2 Black, and I think the reasoning of that court is conclusive.
"Neutral's property in the enemy's territory stands exactly on the same
footing as any other property found there. Indeed, a neutral domiciled
there i« an enemy in the view of the public law. lie may be comi>elled to
serve the enemy as a soldier even, and his property must contribute to
the support of the enemy's hostile operations without reference to his
national character. I think that all authorities — British, Continental, and
American — are in accord upon the proposition that the belligerent right
of capture of movable propi*rty on lan<l is in no respect affected by the
nationality of its owner
"Whatever is lawfully done in the exercise of belligerent rights can
WAR CLAIMS. 3749
*
not involve any liability contemplatod by the treaty ; it can not possibly
be a tort.
''The belligerent right of capture must not be coufonnded with the
right of eminent douiain, which is a civil right, exercised in virtue of sov-
ereignty. The two arc wholly distinct and rest upon different grounds.
"Grant's Case (C. Cls. 1863), cited by Her Britannic Majesty's counsel,
was not a destrnction of enemy's property. It was not in the enemy's
lines, nor in a seceding State. It was a destruction of property in Arizona,
within actual possession of the United Statc8, to prevent its falling into
the enemy'H hands, and by the Constitution of the United States compen-
sation for it was secured, and this only did the court decide.
''But are we to be told that the Government of the United States is
compelled by its Constitution to pay its rebellions citizens for their prop-
erty destroyed as a lawful, heUigerent act? Has its Constitution thus tied
its hands as against a rebellion? Might the rebels, without liability,
exercise all recognized belligerent rights against it, including the capture
of the prdperty of British subjects found in the loyal States, and yet it
do the like only subject to the duty of making compensation?
"From all this absurdity there is no escape if the belligerent right of
capture and destruction shall be confounded with the sovereign right of
eminent domain. And indeed captures on the high seas mast then go into
the same general category.
"In fine, a constitutional provision — the condition of compensation for
property taken for public use — intended only to restrain civil a<lministra-
tion, would be held to so trammel belligerent rights in time of civil war
that effective hostilities against rebels might sometimes be practically
impossible.
"Now, Congress saw that the full exercise of the belligerent right of
capture on land was, as to cotton e8])ecially, of the greatest military
importance, and that such capture would, therefore, be extensive, and
that it would fall alike on the loyal and the disloyal citizen, and also
upon foreign residents in the South who had not actually violated any
duty. It was a generous policy to mitigate calamities which a war thus
lawfully conducted would nevertheless impose upon persons guilty of no
actual wrong. If the <*apture was a lawful act of war, to restore a por-
tion of the proceeds would bo an act of grace and generosity constituting
no foundation for a claim for more; and if a particular mode was at the
same time provided whereby this partial restitution might be sought,
that mode only could be resorted to. The right generously given and the
mode of seeking it must go together.
"The act concerning captured and abandoned property, allowing loyal
persons to recover in the Court of Claims, was just this act of grace.
(Ahderson's Case, 9 Wall 56.)
"My conclusions are:
"1. Capture of cotton of British owners within the rebel territory was
not wrongful by international law.
"2. It was not wrongful under the act of Congress.
" 3. It was a belligerent right, and not the civil and sovereign right of
eminent domain.
" Without the act of Congress no compensation was due.
3750 INTERNATIONAL ARBITRATIONS.
"5. Only saoh liability as the act of Congress imposes exists, and it
must be sought in the uiodo prescribed by the act.
''Again, it is a principle of inteniatioual law established by the prao-
xice of all civilized states, and sanctioned by every consideration of expe-
diency and justice, that where a nation bas provided an adequate
municipal remedy by Judicial proceedings for wrongs done by it to for-
eigners domiciled within its jurisdiction, as well as to its own subjectH,
no international reclamation can be made, at least until this municipal
remedy has been exhausted.
'' I'pon this principle also this commission should make no award in
this class of cases. The Court of Claims was open to tbese claimants,
with jurisdiction to give them reasonable compensation for captures of
cotton. Then^ citizens of the United States must go for relief within the
time limited by act of Congress; and I cannot assent to the proposition
that domiciled aliens have a better claim than citizens.
*^ I would not be understood to hold that tht; right of capture of enemy's
property on land, as recognized in rcceut times, is as broad as it is at sea.
The military reason for it must be more palpable and immediate. There
is a remote possibility that to take the lives of noucombatants — enemies —
may weaken tbe enemy, for tbese might be forced into the armies of the
enemy ; so, too, as to an indiscriminate capture or destruction of private
property. But all this is (•oudemne<l liy the modern law, and I would
shudder to countenance a revival of practices so horrible.
** I admit, too, that there may be difficulty in doHning the precise limits
of the right of capture on laud. It cannot be doubted that it may be as
broad and general as tbe practice of the enemy in that legard; for rot-ali-
ation is fully justified by institutional writers and by the practice of all
nations.
'^ So I suppose it would not be questioned that arms, munitions of war,
commissary and ([uartermaster's supplies, intended for sale to the enemy,
might be captured or destroyed. So, too, private manufactories intended
to furnish arms to be sold to the enemy, etc. This enumeration might
be exten<led.
** I feel safe in asserting that no nation in Christendom has practically
abandoned tbe right to cajiture and destroy in all such cases. It is a
direct blow at tbe military power of tbe enemy.
"So, if an eu<*my banker has engaged to supply the enemy government
with money, may not the cash in his vaults Jbr tliat purpose be captured?
**This, too, would be a direct blow at tbe sinrws of his military power,
quite as efl'ectivi' and not less humane than taking of life in battle."
5. Confiscation Acts.
Maxwell's Case:
Eeal Estate.
*'Tliis claim was for the vjilue of four lota of
ground, luiinbered 3, 4, 5, and 6, in block No.
12, ill the city of Leavenworth, in the State of
Kansas, in the United States of America. The injury com-
plained of was the sale of these lots, by the authorities of the
United States, by virtue of proceedings instituted in the dis-
WAR CLAIMS. 3751
trict court of the United States for the district of Kansas, to
obtain the condeinuatiou and forfeiture of the same under the
provisions of an act of Congress of the United States entitled
'An act to suppress insurrection, to punish treason and rebel-
lion, to seize and confiscate the property of rebels, and for
other purposes' (12 United States Statutes at Large, p. 319).
'^ On belialf of the claimant it was contended that the evi-
dence adduced proved —
" I. That the claimant was a subject of Great Britain by
nativity; that in the year 1857 the claimant, while temporarily
residing in the United States, became the owner of the lots in
question by purchase; that in May, 18G0, he returned to Eng-
land, and has since continuously resided in England or Scot-
land; that he was never naturalized, and took no steps to-
ward being naturalized in any other country than that of his
birth; and that he did not in any way, directly or indirectly,
aid or engage with those in rebellion against the authorities of
the United States.
" II. That in July, 18G3, the attorney of the United States
for the district of Kansas filed a libel of information against
said lots, in which it alleged that, after the 17th of July 1862,
t\ie claimant acted as an officer of the army of the rebels in
arms against the United States, and took the oath of allegiance
to the so-called Confederate States, and did various other acts
in aid of those in rebellion against the authority of the United
States; that, without any proof of any of the allegations
made in said libel, all of which said allegations were false, a
default was entered against the claimant on the 12th of Octo-
ber 1863, and a decree was entered in said district court de-
claring said lots of ground condemned and forfeited to the
United States; that subse<iuently, to wit, on the 28th of Kovem-
ber 1863, said libel of information was dismissed by said dis-
trict court as to lots 5 and 6; but, notwithstanding said dismis-
sal, the marshal of said district proceeded to make sale of said
lots 5 and 6 and executed and delivered a deed therefor to the
purchaser, and also sold and executed and delivered a deed for
said lots 3 and 4.
"On behalf of the claimant it was maintained—
"I. That the decree of condemnation was wholly void, be-
cause no notice of the confiscation proceedings was served on
the claimant, who was at the time the same were instituted
and continuously since that time had been beyond seas and a
k
3752 INTERNATIONAL ARBITRATIONS.
resident of Great Hritain, of which country he was a subject
by nativity.
**IL That the decree of condemnation was wholly void, be-
cause no proofs were produced in supi)ort of the allegations
made in the libel of information.
^' III. That the claimant was entitled to the indemnity asked
for, because the evidence now produced l)efore the commis-
sioners showed conclusively that the claimant was wholly
guiltless of the offenses, the alleged commission of which was
miide the basis for the condemnation of his property.
"IV. That the sale by the United States marshal of two
lots, after proceedings against the lots had been dismissed, was
an injurious act, done under color of official authority, and
created a cloud on the claimant's title.
"On behalf of the United States it was maintained —
"I. That the confiscation proceedings in re^w, and having
been conducted in strict accordance with the laws of the
United Stfites, could not now be reviewed.
"II. That the claimant's remedy was by application to the
courts in which the confiscation proceedings were conducted.
"111. That the illegal sale by the marshal of the two lots
which hfid been released from the operation of the libel did
not aflTect in the least the claimant's title, and imposed no
liability on the United States.
"An award was made by two commissioners, as follows:
"'The commissioners are of opinion that the deed executed
by the marshal did not transfer any title to lots Nos. 5 and (i,
and determine to award the sum of 1,782 dollars, to be paid in
gold, by tiie Government of the United States to the Govern-
ment of ller Britannic Majesty, in respect of lots Nos. 3 and 4.'
"The American commissioner did not sign the decree, but
filed no dissenting opinion/'
Peter Mcunvell v. The United SfateHf No. 385, Am. and Br. Claims Com.
treaty of May 8, 1871, Howard'H Report, 81. See also Halo's Report, 170.
Halo, in his report, p. 171, says:
"In the case of Peter Maxwell, No. 385, the memorial alleged that the
claimant, during; the entire war, was a resident of Liverpool. That in the
year 1862 proceedinj^s were instituted in the United States conrt for the dis-
trict of Kansas for the contiscatiou of four lots of land sitnated in the city
of Leavenworth, Kaus., a State not in rebellion, on the alleged ground
that the claimant was a rebel in arms against the United States. The
only notice of the ])roceedings to the defendant was a constructive notice
by publication pursuant to the statute. No appearance being had by the
now claimant, a decree ot confiseation of two of the lots passed by default.
As to the other two, the libel was dismissed.
WAlt CLAIMS. 3753
"The proofs before the conimission clearly showed that the allegations
iu the lihel as to the olaiinant being engaged in the rebellion against the
United States were nnfonnded.
'* The conimission made an award in favor of the claimant for $1,782."
Joseph Brugere, a citizen of France, pur-
Bmgere's Caie. cbased in May 1865/at public auction, certain
real estate in New Orleans whicli bad been
condemned under statutes of tbo United States of August 0,
18G1, July 17, 18(»2, and March 3, ISG;^, by which the courts
were authorized to condemn and confiscate the property of
certain persons engaged in rebellion. The record title to the
property in question was in the name of John Slidell. The
deed to Brugere recited the proceedings of condemnation and
sale, and while there were no covenants as to title, made a
conveyance in these words:
" Now, therefore, know all men by these presents that the
United States marshal aforesaid, in consideration of the
premises, and by virtue of the laws in such case made and
provided, and under the authority of the acts of Congress of
()th August 1861, and the 17th July 1862, and on the 3d
March 1863, in relaticm to confiscation, does hereby sell, trans-
fer, assign, and set over unto tlie said Joseph Brugere, as
aforesaid, his heirs, administrators, executors, and assigns, all
and singuLar the above-described property, with all the build-
ings and improvements thereon, rights, ways, privileges, here-
ditaments, and appurtenances to the same belonging or in
anywise appertaining."
By the act of July 17, 1862, it was provided thfit the act of
1861, authorizing confiscation, should '^not be so construed as
to work a forfeiture of the real estate of the oflTender beyond
his natural life.'' And after the death of Mr. Slidell, which
occurred in 1871, his heirs instituted proceedings for the
recovery of the estate, and the supreme court of Louisiana
made a decree, which was aflBrmed by the Supreme Court of
the United States on writ of error, and by which the heirs
were awarded possession.
On this ground Brugere made a claim against the United
States. He adduced some evidence tending to show that repre-
sentations were made by the marshal that the sale was of the
fee of the estate, and he averred that such was at the time his
understanding; and lie contended that, in view of the repre-
sentations made, and of tlie terms of the conveyance, the
United States should be lield responsible for the failure of the
title which he asserted to the whole estate.
On the i>artof the United States it was maintained that the
3754 INTERNATIONAL ARBITRATIONS.
government would not be bound by any representations made
by the marshal, nor by any unauthorized covenants which the
deed might contain; that the statutes authorizing the confis-
cation of property were public statutes, and were referred to
in the deed ; that the memorialist was thus put upon inquiry as
to the nature of the estate which the marshal was authorized
to convey, and that his failure to make such inquiry rendereil
him responsible for the consequences of any misunderstanding
as to the extent of his title.
Th.e claim was disallowed by the unanimous judgment of the
commission.
Joseph Bnigere v. United StateSf No. 318, Boutwell'a Report, 128, Commis-
sion under the convention between tlie United States and France of
January 15, 1880.
6. Embargoes of Property in Cuba Under the Decrees
OF 1860.
[From the Official Gazette, Havana, February 14, 1869— Translation. 1
Superior Political Government of the Ever Faithful Island
OF Cuba.
In use of the extraordinary faculties with which the provisional gov-
ernment, of the nation has invested me, I decree the following:
Art. 1. Crimea of iujidencia shall be tried by ordinary coart-martial
Art. 2. Prosecutions already commenced shall follow the legal process
prescribed by the laws for the tribunals of justice.
Art. 3. All aggressions, by act or by word, against any of the delegates
of the government shall be considered as a crime against the authority,
and will subject its author to trial by court-martial.
Domingo Dulce.
Havana, February 12y 1S60.
[From the Official Gazette, Havana, Felimary 14. 1809 -Translation.)
Superior Political Government of the Ever Faithful Island
OF CUHA.
Office of the Secretary.
For the better nnderstanding of th«> decree published yesterday (the
12th of Febnmry), it is made known that under the word ivjidenciay which
is made use of in article l,are understood the following crimes: Treason
or lesa nacion, rebellion, insurrection, conspiracy, sedition, harboring of
rebels and criminals, intelligence with the enemy, meetings of journeymen
or laborers and leagues; expressions, cries, or voices subveraive, or sedi-
tious; propagation of alarming news; manifestations, allegations, and all
that, with a political end, ten«ls to disturb public tran«iuillity and order, or
that in any mod(^ attacks the national integrity.
It is also made known that robbery in uninhabitiMl districts, whatever
WAR CLAIMS. 3755
may be the number of the robbers, and in populated districts, if the num-
ber of the robbers be more than three, shall be tried by coart-martial, as
also the bearers of prohibited arms. And by order of his excellency the
superior political governor, the same is pnblisliod in the Gazette for the
general knowledge.
Josi^: Maria Diaz,
lite Secretary,
Havana, February IS, 1869,
[From the Official Gazette, Havana, April 15, 1869.— Translation.]
Superior Political Government of tub Province of Cuba.
[Circular.]
Under date of the 1st instant I said to his excellency the political gov-
ernor of this capital as folio wh :
**YouR Excellency: Your excellency will immediately proceed, with-
out permitting anything to delay yon, to embargo all theeftectaaiid other
property which Messrs. Jos6 Morales Lemus, Nestor Ponce de Leon, Manuel
Casanova, 3o%6 Mestre, Jos6 Maria Bassora, Jos^ Fernandez Criado, Antonio
Fernandez. Bramosio, Ramon Aguirre, Jos6 Maria Mora, Javier Cisneros,
Tomas Mora, Federico Mora, Federico Galvez, Francisco Izquierdo, Pen-
taroo Gonzalez, and Joaquin Delgado possess \)r have possessed in this
inland; meanwhile that with reference to the latter it shall not be proved
that all the requisites established by the laws for the transfer of property
shall have been scrupulously complied with."
Which I transcribe to your excellency for your knowledge, and to the
end that you proceed immediately to the embargo of all the estates and
effects which the individuals included in the foregoing Ast possess in your
jurisdiction.
God preserve your excellency many years.
Domingo Dulce.
Havana, April lo, 1869.
[From the Official Gazett<>, Havana. April 16, 1869.— Translation.]
Political (^ovkunment of Havana.
Having been embargoed by ordor of his excellency the political gov-
ernor, the properties belonging to Messrs. .los^ Morales Lemus, Nestorde
Leon, Manuel Casanova, Jose Mestre, Jos(^ Maria Bassora, Jos<S Fernandez
Criado, Antonio Fernandez Bramosio, Jose Maria Mora, Ramon Aguirre,
.Javier Cisneros, Tomas Mora, Federieo Galvez, Francisco Izquierdo,
Pentarco Gon/alez, Joaquin Delgado, and Federico Mora, all persons pos-
sessing sums of money, ejects, or values of whatever class belonging to
the said individuals will give account of the same to this political gov-
ernment immediately, being rcHponsible for nil concealment or means of
eluding the compliance with that disposition, prohibiting to them finally
the purchase, sale, payment, transfer, cession, or the making by them of
whatever operation that affects or may refer to the ownership of the em-
bargoed property, with the understanding that the infractors are (compre-
hended in the disposition witli reference to the offense of infidencia con-
tained in the decree of his excellency the superior political governor of
/
3756 INTERNATIONAL ARBITRATIONS.
the 13th of February last, and shall be sabmittetl in conHeqncnce to trial
by conrt-martial.
DiONISIO LOI>RZ ROBKKT8.
Havana, April 1, 18G9,
Drcrer of April 17, 1869.
In tho exerciHoof the extraordinary and discretional powers invested in me
by the supreme government of the nation, and with a view to the necessity
and urgency of executing with ull proper legality, solemnity, and pub-
licity the nets resulting from the embargo of property of all kind appertain-
ing to the sixteen individuals referred to in the communication addressed
to the political governor of this district on the Ist instant, and of all who
may be in the same case, I come to the resolution to decree the following:
1. A board is hereby established to administer property belonging to the
sixteen individuals referred to in my decree of the 1st instant which was
ordered to be embargoed on the same date.
2. Said administrative council is composed of the political governor of
Havana as president; of three niembem from the cori>oration of this capi-
tal, three froui the class of proprietors and planters, three from the class
of merchants; one Huperior oflicer from the tiiinncial department; asecre-
tary, who shall be the secretary of the political governorship, and of such
employees as shall be ])ro]>o8ed to me by the president of the aforesaid
council.
3. The functions of president, members, and secretary of the council
shall receive no compensation.
4. All funds collected in consequence of the embargoes shall be depos-
ited in the general treasury, whence receipts shall be issued for the security
of tlie president of the administrative council, the funds being subject to
liis order.
5. The president of said board will have authority to decide all matters
and piMiits oftoring doubt in the interpretation of my decree of 1st instant,
and those of a Judicial or legal nature calling for decisions from the estab-
lishe<l courts shall only be brought to me for resolution.
0. The appointment and removal of individuals to fill the bureaus of
the adiniiiistrative council shall be determined by said president. The
salaries of said functionaries and the cost of articles required shall be
defrayed from the funds collected.
7. The lieutenant-governors of this province shall remit to the president
of the administrative council all items they may actiuire in their respec-
tive districts relating to property embargoed or to such as may be here-
after embargoed; they shall deliver said property to the same oonncil,
together with the inventories, deeds, and other public documents which
they may act^uire (»r ctmsider necessary; and they shall execute such
orders referring said matters as they may receive from said president.
8. The president of the aforesaid l>oard shall propose to my authority
whatever change in the organization of the same, or in the persons com-
posing it, he may consider expedient to make.
Domingo Dulcr.
Havana, April 17, 1869,
In conformity with the requirements of my decree of this date, and
exercising the extraordinary powers invested in me by the supreme gov-
WAR CLAIMS. 3757
eminent of the nation, I have resolved to appoint preAident of the council
to administer ]>roperty ordered to be embargoed belonging to the sixteen
individuals referred to in my order of 1st instant, and of as many
more as may be m the same circumstances, Don Dionisio Lopez Roberts,
p<»litical governor of Havana, and members (of the board) Don Juan
Atilano Colom<^, Don Mamerto Pulido, and Count Poeor-Dulcos, from the
corporation of this capital; Don Jos<^. Cabargo, Don Juan Poey, and Don
Joaquin Pedroso, as pro]>rietors and planters; Don Fernando Illas, Don
Bonifacio Jimenez, and Don Segundo Rigal, merchants; Dun Agustus
Genon, as chief of the central section of taxes and statistics, and Secre-
tary Don Juan Zaragosa, who is secretary of the political governorship of
Havana.
Domingo Dulce.
Havana, April 17, 1869.
Circular of Aprh. 20, 1869.
By the Gazette of the 15th instant you will have been informed of two
circulars issued by mo, the first on the occasion of receiving by mail and
circulating of a paper signed Jos<^ Morales Lemus, president of the Central
Republican Junta of Cuba and Porto Rico, and the second ordering the
immediate embargo of the estates and other properties that said Morales
Lemus and other individuals possess or may have possessed on this island.
You will have likewise become ac«[uainted with my decree of 1st instant,
published in the Gazette of tlie lOlh, as a preventive measure to impede
sales of property made with illegitimate ends, and lastly, in the Gazette
of the 18th, an administrative committee has been appointed to administer
the property embargoed by the decree of Ist instant. These resolutions,
well considered and justified by the damages caused by the insurgents,
appertain to a system which it is indispensable to follow in order to put an
end to the insurrection at once. To obtain this object, and exercising the
extraordinary and discretional powers with which 1 am invested by the
supreme government of the nation, I have determined the following:
Article 1. All i>er8ons [as] to whom it may bo proved that they have
taken part in the insurrection in or out of the island, either armed or
aiding the same with arms, ammunitions, money, or provisions, are hereby
declared to bo comprised in the circular of 15th inst. relative to Jos^
Morales Lemus and others.
Art. 2. The persons who within the proper time claimed the benefit of
the amnesty and pardon decreed and who in their subsequent conduct have
proved their adhesion to the government are excepted from the above
resolution.
Art. 3. The persons comprised in article 1st are hereby deprived of the
pohitcal and civil rights wh'wh they enjoyed through our laws, the action
of this resolution l>ein<r carried back to the 10th of October, when the
insurrection at Vara coinnicnccd, or back to the date in which it may be
ancertained that they took jiart in the preparations for the insurrection.
Art. 4. The c(m tracts agreed to by said individuals, from the dates
above mentioned, shall be presented to the revisal of the government
within three days after the publication of this circular.
Art. 5. The governors and lieutenant-governors will immediately remit
said contracts, with their report, to the president of the administrative
3758 INTERNAT10NA.L ARBITRATIONS.
conncil, wher^, in view of the antece<leiit«, the proper resolations will be
decided upon.
Art. 0. Said authorities shall at once proceed by themselves or through
their delegates, to institute a government investigation to prove the crime
of the parties comprised in this resolution/ giving an account to the
president of the administrative council of the commencement of said
investigation.
Art. 7. As the guilt of the delinquents shall become established, the em-
bargo of their properties, actions, and rights shall be acted upon, and the
governors of the other districts where they may also have property shall
be informed, so that those shall be also embargoed.
Art. 8. Each governmental investigating process shall refer to one in-
dividual alone, and as it shall bo brought to conclasion with the deposit
of the property embargoed, the council of administration shall be in-
formed in conformity with the Art. 7th of the decree creating said council.
Art. 9. The governors and lieutenant-governors, who, in their jurisdic-
tion shonld embargo property of individuals, who had been or are,
residents in another Jurisdiction, will rmiitto the president of the admin-
istrative council the items referred to in the article quoted in the preced-
ing, and will communicate to the governor from whence the embargo
proceeds a statement of the property embargoed, which shall be annexed
to the government proceeding.
Art. 10. When the opportunity arrives from the state of the procedure
to embargo property, an order shall bo issued stating the grounds, and
shall be carried into effect by the same lieutenant-governor, or the delegate
appointed by him, assisted by the notary or secretary (escribano), and
either two or three witnesses, who shall bo near relatives of the delin-
quent, or, if there be none such, his near neighbors. In the absence of a
notary, two witnesses shall bo emi>loyed, according to law.
Art. 11. In the act of tlio embargo an exact inventory of the property
shall be taken, reporting the same in detail, discriminating furniture,
real estate, rights, and shares or actions, circumstances being set forth to
establish their identity and avoid all mistakes.
Art. 12. Th(^ i>roperty embargoed shall be deposited in a resident lego
(not a lawj'er), Uann (not privileged from rank or class), and abonado
(enjoying guaranty for the object), Kelected by the governor or lieutenaut-
governor, who shall inform the president of the administrative council of
said appointment, and give the depositary a certified copy of the embargo,
and of his appointment.
Art. 13. It is left to the judgment of the governor, or lieutenant-
governor, as the case may be, to deliver all the property to a single depos-
itary, or to distribute it among several; said authorities bearing in mind
that the best possible moans should be ado])ted that the property may not
be injured in its nature or jiroductiveness ; for which motive, if there should
bo some creditor {rcfaccionisia) (one who provides the necessary means to
sustain and bring about the profits of an enterprise), they will endeavor
to have the same appointed as depositary (receiver), provided said party
deserve the full confidence of the authority.
Art. 14. The depositaries shall take charge of the property in accord-
ance with the inventory, giving receipt before the lieutenant-governor or
his delegate, witnesses and the attesting notary, and said depositaries
WAR CLAIMS. 3759
binding thcniHelves with their persons and property to have snid i»roperty
safely guarded as a judicial depoHit, subject to the order of the president
of the administrative connciK
Art. 15. The depositaries shall preserve and administer the property
with all care and diligence, being responsible even for slight faults; they
shall not be authorized to sell it for no [any] reason or i>retext excepting
when the governor or lieutenant-governor should order it in consequence
of a resolution of the administrative council; they shall neither be
authorized to transfer the deposit te another party, unless for a just cause
it should be ordered by the first authority of the district, in which o.'wes
the newly-appointed depositary shall take charge of the property in
accordance with the preceding article, all of which shall be made known
to the president of the administrative council.
Art. 16. The depositaries (receivers) shall keep a faithfulexact acconnt,
with vouchers of all expenses originated, and of the products yielded by
the property, which acconnt, together with the net profits, they will
present monthly to the governor or lieutenant-governor.
Art. 17. As soon as the depositary (receiver) shall have sent the net re-
sult, the first authority shall order their ingress in the treasury depart-
ment, with the character of a deposit, subject to the order of the presi-
dent of the administrative council to whom the formal receipts shall be
sent, a certified copy of which shall be left in the proceedings.
Art. 18. The accounts, with their vouchers, shall also be sent to the presi-
dent of the administrative council, that he may do the needful until their
approval, and a copy of the decree of approval shall be sent to the liea-
ttaiant-governor, to have it annexed to the procedure.
Art. 19. When the proi>erty embargoed should be found to be haciendas
(estates), cattle, or other re<]uiring culture or collection the depositary
shall be authorized to select and appoint, on his responsibility, the man-
ager or clerks strictly needed.
Art. 20. No one who is not by law dispensed from exercising municipal
duties can exempt himself from serving the functions of depositary. In
proportion to the importance and <iuality of the property embargoed,
and also to the labor required of the depositary, the governor or lieutenant-
governor shall report to the ])resident of the administrative council re-
specting the compensation that the former should receive, which should
always consist in a percentage on the sums collected an^ paid by him,
with the understanding that it shall not exceed five per cent for each of
said objects, the amount of profits returned referred to in article 16 being
exempted from said charge.
Art. 21. The governors or lieutenant-governors shall be answerable in
conformity to the laws for the improper selection by them made of de-
positaries and, therefore, for the errors committed by the latter, especially
if through their fault the embargoed property should perish.
Art. 22. The property embargoed shall be answerable in the first place
for the expenses incurred for its preservation and management, those to
be preferred consisting in current and arrear taxes, and next for debts
contracted by the owner of the embargoed i»roperty previously to the
dates referred to in article 8d.
Art. 23. If the creditor should be one of the individuals referred to in
this circular, the payment of the accredited claims shall be made into the
i
3760 INTERNATIONAL ARBITRATIONS.
bands of the depositary of the property embargoed of said creditor. If
the latter should uot be of that class, he should be made to prove his
claims before the governor and lieutenaut-goveruor, who shall report to
the president of the administrative council, who, -when the case shall jus-
tify it, shall order the payment. The debts contracted after the dateii
referred to in article 3d will be made subject to the resolution in articles
4 and 5.
Art. 24. When all or a jiortion of the property sequestrated or embar-
goed shall be found subject to an association of creditors before a court,
or to a judicial procedure in a failure, the common attorney representing
creditors (sindico) may bo appointed depositary, but if said 8indico9 or
attorneys should have been appointed by the court where the c:i8o belongs,
then they are of necessity to l)e appointed depositaries of the embargo
under the obligation of fulfilliug the enactments of this circular relative
to said depositaries.
The attorneys (sindicos) enumerated by said association of creditors
(concurso) will not receive the remuneration to which article 20 refers
Art. 25. Once the sentence for the order of payments shall have been
given in the court where the creditors are represented, as soon as it shall
be ready for execution, a copy of it sh:ill be annexed to the government
procedure for the need/ul objects, and the governor or lieutenant governor
shall send a <'opy to the president of the administrative council.
Art. 26. In cases where the property embargoed, in consequence of the
government procedure should have been embargoed in advance judicially
by order of a court, the new embargo shall be made known to the judge
who ordered the first. In this case the depositary already named shall be
appointed anew, and also receive the deposit, going over the counting and
making another inventory of the property, but with no assignation of
stipend, unless he should have been entitled to it by the first appointment
committed to him.
Art. 27. If tlu^ first embargo should have been established at the re-
(pKtst of some one of thohc to whom this circular refers, when the crimi-
nality of said individual shall have been proven in the governmental pro-
ceeding, the governor or lieutenant governor shall communicate the fact
to the respective judge, who, after having the law expenses apprised,
shall suspend the course of the proceedings, sending them to the govern-
ment authority that it may order the payment of said expenses, and what-
ever else should be required, according to article 23d.
Art. 28. AV'hen the iirst embargo is made at the re<iuost of a party not
com})rised in this circular the respective judges shall dictate the sentence,
according to law, in the shortest possible term, sending a copy of it to the
governor or lieutenant-governor for tlie objects that may be required.
Art. 29. If any ])crson not comprised in this cir(;ular should claim as
his all or a part of the property embargoed the embargo shall not be
raised until his right shall have been proved und until the administrative
council shall have issued its decision and to said council report shall be
made of the case, with the proceedings.
Art. 30. The governor or lieutenant-govornof who, in his jurisdiction,
should embargo property of individuals who were or are residents of
another jurisdiction will initiate the proceedings with the communicatioti
WAR CLAIMS. 3761
he may receive for the embargo, executing the same immediately, in con>
formity with the terms of this circular.
Said proceedings once ended, the govomor or lieutenant-governor shall
comply with what is required in Art. 9th, keeping said proceedings in the
government oflice for subsequent ends.
Art. 31. When the order for the embargo, referred to in Art. 10th, shall
be given, parties ixissessing money, goods, or values of any kind belong-
ing to the individual concerned in the proceedings shall be summoned
through the newspupers or public bulletins to report to the government
authority, and be made responsible for any concealment or act intended
to evade the said resolutions, it being expressly forbidden to buy, sell, pay,
transfer, give, or do aught which may affect or which relates to the owner-
ship of the goods embargoed; with the understanding that infractors shall
be attainted in what is determined regarding offenses involving treason in
the decree of this superior government, dated 13th of February last, and
they shall be consequently subjected to a council of war.
God preserve you many years.
Domingo Dulce.
Habana, ;20th of Aprily 1869.
Addre68e<l to all governors or lieutenant-governor^
Decree of July 12, 1873, Raising tiie Embargoes.
preamble.
Animated by the principles of strict legality, which form the unchange-
able foundation of democratic teachings, and desirouH of realizing in all
that pertains to his department the amplest attainable right, the under-
signed minister has endeavored, with zealous care since he entered upon
his duties, to give paramount attention to the numerous and important
questions which, in their relations to the state of insurrection that exists
in a portion of the territory of Culm, may lead to excesses of authority,
arbitrary acts more or less grave, or the employment of force against the
personality of the inhabitants, all of which are unfortunately too frequent
in the history of all internecine struggles.
Upon undertaking to study these questions, in the fulfillment of one of
the first duties of his ofhcc, the minister of the colonies found, and could
do no less than seek to reform, a state of things, in his judgmen't, com-
pletely anomalous, namely, the existence of a great accumulation of prop-
erty wrested from the hands of the legitimate owners with no other
formality than a simple executive order and turned over to an adminis-
trative control exercised with great irregularity in the name of the gov-
ernment, to the notable depreciation of the products of those estates, to
^ The translation here given of the decrees of April 17 and April 20 may
be found with the brief of the advocate of the United States, as well as
with that of the advocate of Spain, on the subject of embargoes. Another
translation, in many respects not very accurate, may be found in S. Kx.
Doc. 108, 41st Cong., 2d sess., p. 224 et seij. In the latter the (Jth article of
the decree of April 20 reads: **Said authorities will iiiniicdiately proceed
by themselves or through their delegates to the formation of gubvrnative
Judicial proceedings {expedienies gubtrnativa»),'* etc.
3762 INTERNATIONAL AKBITRATI0N8.
tli«) injury of the families dependent thereon for support, and to the detri-
ment of the public wealth, whoso diminution is the inevitable result of a
want of regularity and order, and the absence or withdrawal of individaal
interents in the control and mana^i^ement of property.
Such a condition of thin^rs, besides being utterly at variance with a
political system whose fundamental basis must ever be justice st-em, yet
considerate, removed from the rancor of party spirit, and foreign to m11
motives of passion, could lead to no other result than to embitter mutual
resentments more and more by the sad spectacle of misery, the more keenly
felt as it has been the more suddenly and unexpectedly brought about, and
niuHt, moreover, tend to render profitless a great part of the rich soil of
the island, and to introduce disturbance and disorder into the system
of production, thus interfering with its due development.
The Cuban insurgents, those in correspondence and relations with them,
and those who, more or less openly, lend them protection and aid, thus
contributing to prolong a cruel, bloody, and destructive war, doubtless
merit energetic suppression and exemjdary punishment, and the more so
to-day when the government of the republic pledges to all citizens of Spain,
on either side of the seas^ assured and ethcacious guarantees of respect
for the rights of all, and oflei-s the means of maintaining their opinions
and propagating them and causing their ideas to tiiumph in the only
manner in which ideas can triumph in a social structure raised upon the
solid foundations of reason, truth, and right.
But even the need of such punishment can confer upon no government
the power to deprive those of its citizens who stray from the right path
of their individual means of su])port, and to enforce upon their families
the bitter necessity of begging to-day the bread that abounded but yester-
day on their tables as the fruit of their labor or their economy.
Apart from the foregoing considerations, there cannot be found in
the law of njitions (derecho dc geutes) any precept or principle authorizing
this class of seizures which bear ni)on their face the st^imp of confiscation ;
neither under any HOiind judicial theory is jt admissible to proceed in such
a manner; nor yet can tlie except icmal state of war authorize, under any
pretext, the ado]>tion of preventive measures of such transcendent impor-
tance an<l whose results, on the other hand, will inevitably be diametric-
ally opi)Osed to the jnirpose that inspired them.
In consideration, therefore, of the facts thus set forth, the undersigned
minister presents for the approval of the council the following draft of a
decree :
** Madrid, July 12, 1873,
The minister of the colonies, Francisco Snner y Capdevilla, decree:
In consideration of the representations set forth by the minister of
the colonies, the government of the republic decrees the following:
Article 1. All embargoes juit upon the property of insurgents and
disloyal ])ersons {infideiitei^) in Cuba, by executive order in consequence of
the <lecree of Ax>ril 20, ISGi), are de<lared removed from the date when this
present decree, published in the Madrid (lazette, shall reach the capital
of the Island of Cuba.
Articlk 2. All property disembargoed by virtue of the provisions of
the preceding article shall be forthwith delivered up to its owner or legal
WAR CLAIMS. 3763
reprosentatives without requiring Arom thorn any other J nstifi cation or
formality than sach as may be necessary to show the right under which
they claim its restoration or for their personal identification.
Artici^ 3. In order that qaestions growing out of the preceding pro>
visions may be decided with greater accuracy and dispatch, the Captain-
General, superior civil governor of the Island of Cuba, shall forthwith
])roceed to organize, under his x)wn chairmanship, a board composed of
the president of the audiencia as vice-chainnan, the intendente of Cuba,
the civil govetnorof Havana, the attorney-general (fiscal) of the audiencia,
and the secretary of the superior civil government, who sball act as secre-
tary of the board, having voice and vote therein ; and this board shall
summarily, and in the shortest possible time, decide upon such applica-
tions ns may be made by the interested parties without any other appeal
than the one that may be taken to the government of the republic through
the colonial ministry.
Article 4. The board of authorities charged, under the fore>;oing
article, with the disembargo and restoration of property of insurgents and
disloyal persons, may, whenever it shall appear needful to the more thorough
decision of these questions, consult the board of public debt (junta de la
deuda del tesoro), heretofore charged with the administration of property
embargoed by executive order, and may ask and obtain from the tribunals
of every jurisdiction and from all other dependencies of the state the data
and antecedents which may be deemed needful to such decisiou.
Articlk 5. The minister of .the colonies shall issue the nect>bsary instruc-
tious for the execution of the present decree, or shall definitely approve
those which may be prepared to the same end by the board of disem-
bargoes.
Madrid, July 12, 1873.
Francisco pi y Margall,
The President of the (iovernment of the Republic,
Francisco Sunkr y Capdkvilla,
The Minister of the Colonies,^
The first case in which damages were allowed
for the embargo of property under the fore-
going decrees was that of Joaquin M. Del-
gado, No. 31, in which the umpire, Mr. Bartholdi, on Feb-
ruary 24, 1875, allowed the claimant $113,360, with interest
from May 5, 18G9, the date of the embargo, at the rate of 8
per cent for the seizure of his property' by the Spanish authori-
ties *'in violation of the treaty stipulations/' In this case
damages were allowed for the deterioration of the embargoed
property, in the absence of proof of specific acts of destruc-
tion by the Spanish authorities.
On June 26, 1875, the arbitrators awarded the sum of $3,000
for the embargo of property in the case of Jos6 de Jesus
Hernandez y Macias, No. 41.
Cases under the fore-
goiiig decrees.
1 For. Kel. 1873, vol. 2, p. 1008.
5627— VOL. 4 34
3764 INTEKNATIONAL ARBITRATIONS.
The next case in which damages were allowed for an em-
bargo was that of Joaqnin Garcia de Angarica, No. 13, in
which the umpire, Mr. Bartboldi, on November 1, 1875, ren-
dered the following decision and award:
" Inasmuch as there is no doubt about the claimant's Ameri-
can citizenship, and that his new citizenship was notified to
the Spanish authorities six months previous to the embargo;
that the Spanish (xovernment itself acknowledged that the
claimant was innocent of any participation in the insurrection ;
inasmuch as his property was seized in the month of August
1869 and was not restored to him before the years 1873 and
1874; and inasmuch as the Spanish (lovernment is liable for
unjust detention and itse of property, as well as for damages
which embargoed property always suffers —
'^Itis my opinion that the claimant has a right to recover
damages to the amount of $748,180, with interest at 6 per
cent per annum from this day to the day of payment."
In the case of Gonzalo Poey, No. CO, the arbitrators, March
17, 1877, awarded $2,585.60, for an embargo of property.
An award of $1,500 was made by the arbitrators, Octol)er 4,
1870, for the embargo of property, in the case of Fernando
Dorainguez, No. 32. On November 20, 1879, the umpire. Baron
Blanc, awarded $13,600 for an embargo, in the case of Young,
Smith & Co., No. 96.
On January 20, 1881, Mr. McPherson, then
Aigimmto r. c- ^^^^ advocate for Spain, submitted to the com-
mission a printed brief in which he reviewetl
the whole subject of the embargoes and maintained that they
were rightful. At this time embargo claims aggregating in
amount more than $0,0(K),000 were pending before the com
mission. Mr. McPherson's argument was as follows:
1. That " the insurrection of 1808 in Cuba, whatever may have
been its international status, was m fact a bloody war, which
laid waste a large part of the island, and for ten years taxed
the powers and resources of the Spanish Government;" that
"a luition may acknowledge the existence of a war, although
it may at the same time refuse to recognize the parties thereto
as belligerents;" that "the United States at the inception of
their rebellion claimed and exercised tlie rights of war against
the insurgents, while protesting against the right of foreign
nations to recognize them as belligerents;'' that 'Hhe Secre-
tary of State of the Knited States, the American minister at
Madrid," {^nd '* eminent Spjinish otticials," all "admitted the
WAR CLAIMS. 3765
existence (in Cuba) of a civil war of great magnitude, although
at the same time Spain protested against the recognition by
the United States of the insurgents as belligerents;" and
^'that, therefore, within its own dominions, Spain had the right
to use all measures of repression and self-defense justified by
a state of war.'' (H. Ex. Doc. 160, 41 Cong. 2 sess. pp. 16, 20,
35, 43, 46, 136, 157, 164, 165, 168; Dip. Oor. 1873, pp. 999, 1000;
Rose V. Himely, 4 Oranch, 241, 272; Prize Cases, 2 Black, 669.)
2, That '* amongst the measures which the fact of war ren-
dered necessary was the embargo which was decreed against
the property in Cuba of all persons,^ whether Spaniards or
aliens, believed to be giving aid and comfort to the insurrec-
tion;" that this measure ^^was directed against those con-
nected with the insurrection, not only on account of their
complicity with it, but for the jiurpose of suppressing the in-
8urrec;tion itself;" that the question of the guilt or innocence
of the accused was tried, not by the board that was charged
with the care of embargoed property, but by courts-martial;
that 'Hlie proceedings of these courts were so conducted as to
allow the defendants every opi)ortunity of defense in person
or by counsel;" that notice was given by publication to the
defendants to appear, and that, where judgments by default
were given, they were not in fact, though they were in form,
final, but were subject to be opened at any time on the appear-
ance of the defendant. (See Decrees, supra; For. Rel. 1871,
p. 734.)
3. That " neither the decrees of embargo nor the administra-
tion thereof were contrary to international laws;" that they
were sustained by the practice of the Uniti^d States during
the civil war, which practice, as the American courts had de-
clared, was not contrary to law or justice; that in every case,
it was believed, betbre the (commission, the owner of the prop-
erty embargoed in Cuba was absent from it and from the
island, nnd was charged by the Spanish authorities with
aiding the insurrection, and that all the property embargoed
by the Spanish authorities might, therefore, be considered as
coming within the definition of abandoned property given by
the statutes of the United States, viz: ''Property, real or i)er-
sonal, shall be regarded as abandoned when the lawful owner
thereof shall be absent therefrom and engaged in arms or
otherwise in aiding or enconrnging the rebellion " (13 Stats, at
L. 375); that under the acts of Congress of 1862, 1863, and
i
3766 INTERNATIONAL ABBITKATI0N8.
1864, no inquiry preliminary to seizure was made except such
as the officer who directed the seizure might think proper to
make for his own satisfaction, and that the judicial proceed-
ing then instituted was carried on by the same officer filing
in court a libel charging that the owner of the property so
seized was a person engaged in aiding the rebellion; that in
the United States the claimant, in order to obtain relief, had
to ^^ await the suppression of the rebellion, and then, in a suit
begun by himself, and by evidence produced at his own ex-
l)ense, prove that he had never given any aid or comfort to the
rebellion, or (as a subsequent act required) to any })erson en-
gaged therein," while in Cuba, *' in every individual case, a
proceeding was commenced against the owner of the property,
and the expense and the burden of proof was cast, not upon
the owner, but upon the government, and the proceedings
were not postponed till the rebellion was over, but took place
at once;-' that, while this *' involved the necessity of proceed-
ing to Judgment in the absence of the property owner,'' there
was " always a provision made in the judgment that it might
be reopened if the defendant should appear;" that "in the
similar proceeding in the loyal States under the United
States statutes, the failure of the defendant to appear was
taken as conclusive proof of guilt and the judgment against
him was final, while, as regards seizures in the South, his
failure to claim his property within two years was equally con-
clusive against him;" that, as to the objection that the pro-
ceedings in Cuba were contrary to the treaty of 1795 because
they were carried on before courts-martial, the necessity of
considering this objection was obviated by the clause in the
agreement of Tebniary 12, 1871, which provided that the ad-
judications of all tribunals made in the absence of the parties
interested, which was the case in all the claims in question,
should be reviewed by the arbitrators who should make such
award, in each case, as they should deem just; that it could
not, however, be denied that Spain, like every independent
state, had the right to organize its judicial system in any man-
ner it might judge best; that the treaty of 1795 provided that
American citizens should be tried *'by order and authority of
law only, and according to the regular course of proceedings
usual in such ceases;" that if, therefore, cases of infidenda
were according to law prosecute<l before courts-martial, there
was no ground of complaint on that score; that while Mr,
WAR CLAIMS. 3767
Webster, in his report of December 18, 1851, in the case of
Thrasher, noticed that there were in Spain, at the date of the
treaty of 1795, ecclesiastical tribunals having power over life
and death, whose i)roceedings were always secret, and against
the secrecy of which the stipulation in the seventh article of
that treaty, in regard to publicity of proceedings, might, he
said, well have been directed, he did not intimate that the
jurisdiction of such tribunals could be affected by the treaty,
but on the contrary declared that the "definition of crimes,
the denouncement of penalties for their commission, and the
forms of proceedings by which guilt is to be ascertained, are
high prerogatives of sovereignty, and one nation can not dic-
tate them to another without being liable to the same dictation
herself;" that Mr. Fish, in his report of March 12, 1872, in the
case of Howard, who was tried for infidencia by a court-mar-
tial, said that the "strong point which prevents the interven-
tion of this Government in behalf of Dr. Howard from becom-
ing efficacious is the fact that he has been regularly tried and
found guilty by a duly constituted tribunal in the Island of
Cuba;" that it was "the preeminent duty of every govern-
ment," in the exercise of the right of self-defense, "to maintain
its own authority within its own dominions, and to that end
to exert every power which the necessity of the case invokes,"
and that for the measures taken for the discharge of this duty
nations are not to be too strictly judged; that the general
sympathy of native Cubans with the insurrection, the fact
that large numbers came to the United States, " whence many
of their number engaged in sending out expeditions to carry
aid to the insurgents," and the further fact that, while contin-
uing to hold their property in Cuba and to reside there a
great portion of their time, they undertook to transfer their
allegiance to the United States, were circumstances that war-
rant suspicion; that, to justify seizures, suspicion of actual
guilt was not always necessary, but that "actual danger might
justify a seizure under circumstances which, in the absence of
danger, would not warrant it, and that for acts of hostility
committed by the claimants, while in the United States, against
the Government and people of Spain, seizures of their prop-
erty in Cuba were justifiable and lawful." (I Kent's Comm. 48 ;
3 Wallace, 02; Lock v. Untied States; The George, 1 Wheat.,
408; Diekelmans' Case, 1)2 U.S. 520; Mitchell v. Harmony^ 13
Howard, 133; Wharton's Con diet of Laws, §§ 856, 871, 876, 879,
i
3768 INTERNATIONAL ARBITRATIONS.
906; Vattel, H. 3, ch. 6, § 95; (^rotiiis, B. 3, cli. 1 ; Collie's Case,
94 i:. S. 258.)
4. That '* the embargoes were not in violation of the treaty of
1795, not beinp^ prohibited by Article YII. or any other article
of that treaty;" that the word embargo had both in English
and in Spanish a common sense as a term of commerce, and
meant the prohibition of ships to leave the country; that,
while it had other senses in Spanish, that construction of the
text sliould be adopted which would make both versions agree;
that, in the same article, the treaty prohibited detention of
effects, and provided that in case of seizure, detention^ or arrest
for debts or offenses^ the prosecution should proceed according
to the usual course; that, collating these provisions, it appeared
that vessoly and effects were not to be embargoed or detained
for any military expedition or other public or private purpose,
yet they might be seized and detained for debt or crime, and
in order to give effect to both i)rovision8 it must be held that
a seizure or detention for debt or crime was not a seizure or
detention for a i)ublic or private purpose; that the provision in
Article VIl. of the treaty, which forbade embargoes and deten-
tions ''for any military expedition or other public or private
purpose whatever," was intended to prohibit the exercise of
tlie ancient prerogative, known as the Jus AngariWj to exact
from ships riding in the ports and roads of a country cert^vin
services and duties for the transportation of soldiers, arms, and
ammunition, in case of some public necessity or exigency; that
it had no reference to the embargo of real estate or personal
l)roperty unconnected with trade and commerce; that the
United States, by the acts of Congress of 1807, 1812, and
1S13, laid a general embargo on all foreign ''vessels and
effects," without making an exception in favor of Spain, thus
disclosing tlie constructtion then given to the treaty; that the
l)rotection and promotion of commerce was the object of all the
articles of the treaty from G to 22, inctlusive; that, even giving
to article 7 the construction contended for by the claimants, the
necessity of taking measures for self-defense worked an excep-
tion in favor of the Spanish Government; that, during the
excitement attending the Trent affair, in 1861, the British India
(Jovernment issued two ordinances j)rohil)iting the exportation
of saltpeter from that country to any phice except Great Brit-
ain, and except in British vessels ; that, under these ordinances,
four American vessels, partly laden with that article, were
WAk CLAIMS. 376d
detained at Calcutta till the United States, by acceding to the
British demands, had removed the threatened danger; that
these ordinances were justified by the law officers of the Crown
on the ground of self-defense, and that the claims of the own-
ers of the vessels were rejected by the British claims commis-
Kion ; that, both in the act of Congress of July 17, 1862, and
in the Spanish decree of April, 18G9, touching the embargoes,
it was the declared object of those measures not merely to pun-
ish persons connected with the insurrections, but also to insure
the speedy suppression thereof. (As to the word embargo^ see
[Neuman and Baretti's Span. Diet., Jacob's and Bouvier's Law
Dictionaries, Sheridan's, Webster's, and Worcester's English
Diets., the Encyclopaedia Britannica, 1797, and the New Ameri-
can Encyclopaedia, 1859. As to the construction of treaties,
U. S. V. Percheman, 7 Pet. 57. As to the Jus AngariWj Mr.
Sagasta to Mr. Sickles, Sept. 12, 1870. For Eel. 1871, p. 711;
Azuni, Chap. V. : Beawes, Lex Mercatoria Rediviva, London,
1771, p. 242; Lawrence's Wheaton, Part IV., ch. 1, note 169.)
5. That *'' the proceedings of Spain against the property in
Cuba of native Cubans in the United States was justified by
the general hostility of that class to the Spanish Government,
and the impossibility of discriminating between friends and
enemies, the well founded, and often realized, apprehension of
danger from the machinations of the native Cubans in the
United States, the views of the United States with regard to
the island of Cuba, and the declared sympathy of the President
and cabinet with the object of the insurrection." (H. Ex. Doc.
160,41 Cong. 2d sess. [same as Senate Ex. Doc. 108 same session],
pp. 13, 15, 17, 18, 22, 37, 42, 4S, 53, 58, 06, 69, 92, 128, 158, 159,
160, 167, 168, 174, 176, 183, 184, 188, 189; Appleton's Annual
Encyclopaedia, 1869-1870, pp. 209, 210, 211, 213, 216.)
6. That "the decree of July 12, 1873, was merely a change of
policy on tbe part of the Spanish cabinet, and can not be con-
strued as in any sense an admission of the illegality of the
measure which it was designed to discontinue;" that while it
was true that the report of Mr. Suner y Cax)devilla, minister of
the colonies, on which the decree was made, contained admis-
sions of their illegality, he was not in power when the decree
was made, and it did not appear that the government in mak-
ing the decree adopted his views in that regard.
7. That "the United States, being bound by the same obliga-
tion as Si)ain under the treaty of 1795, passed geneial embargo
3770 . INTERNATIONAL ARBITRATIONS.
acts ill 1807, 1812, and 1813, and during the rebellion of 1861-
1805 passed a series of acts wbicb, in theory and purpose, were
exactly similar to the Spanish decrees of embargo, and the
proceedings and practice under which were in every respect
similar to those under the Cuban decrees, if, indeed, not more
harsh in their results." (See this argument, suprdy 4; acts of
Congress, July 13, 1861; July 17, 1862; March 12, 1863; July
2, 1804; case of Miller, 11 Wallace, 301; British Com. (1871).)
8. That " the true and Just measure of indemnity, in case of
embargo, to claimants whose quality of American citizen shall
be recognized by the commission, is that which governs in
cases of seizures jure belli, and was adopted by the United
States in the rebellion of 1861-1805, i, c, the restoration of
the property which came into the hands of the government,
or, if it has been sold, the net proceeds realized therefrom."
(See acts of Congress last al)ove cited; this argument, svpra,
3, 4, 7.)
Mr. Dnrant, the advocate for the United
an s Aigu- g|.^^^j^^ replying to Mr. McPherson's brief on
the embargo, argued that the agreement of
February 12, 1871, by its terms included all wrongs and
injuries to persons and property, so that it was unneces-
sary to inquire whether the word " embargo " in the treaty of
1795 was well applied to a particular class of the wrongs com-
plained of. He contended, however, that the word embargo,
which was used in the Spanisli as well as in the English text
of the treaty, was used in its full Spanish sense. Mr. Fish had
so treated it in his protests against the arbitrary embargoes of
2)roperty under Dulce's decrees; and the treaty of 1795 ex-
pressly provided that the citizens or subjects of each contract
ing party, their vessels, or effects, should not be liable to any
embargo or detention on the part of the other for any military
exi)edition or other public or private purpose whatever. When
Mr. Sagasta sought to limit the effect of the word "embargo,"
said Mr. Durant, the niinister of the United States at Madrid.
Mr. Sickles, referring to the language of the treaty, replied
that the embargo, if considered as a military measure intende<I
to strengthen one party to tlie conflict and to weaken the
other, would seem to be fairly embraced in the interdictions of
the treaty, and if it was considered as a punishment for oflfenses
against the laws, the accused were entitled to a judicial hear-
ing before judgment was pronounced against them. This view,
WAR CLAIMS. 3771
said Mr. Dnrant, the Spanish Government did not appear to
bave controverted, and it was directly acqaiesced in by Mr.
Martos, Mr. Sagasta's successor. It tbas appeared to bave
been tbe understanding of both governments that the embargo
or sequestration of the proi)erty of American citizens in Cuba
was a violation of the treaty of 1795, and by the agreement of
1871 Spain undertook to pay pecuniary damages to those citi-
zens of the United States who had thus been injured in their
property. The commission itself had so decided in several
cases.
As to the existence of a state of war in Cuba, Mr. Durant
said that Spain had never admitted it, nor was it ever recog-
nized by the United States or by any European nation. (For.
Rel. 1875, vol. 2, pp. 1155, 1158.) In the civil war in the
United States, belligerent rights were recognized by European
powers from the beginning as pertaining to the Confederate
States, and the Government of the United States proclaime<l
and acknowledged the state of war by its blockade of tlie
coasts of the Confederate States, by exchange of prisoners, by
negotiations, and in other ways. "On the other hand, the
authorities in Cuba,'^ said Mr. Durant, "although there was no
war, and consequently there was peace, proceeded at once in
time of war to exercise war iiowers unknown to civilized
nations."
With his brief Mr. Durant submitted an
^^!"? argument on the subject of embargoes by Mr.
J. I. Rodriguez. Mr. Rodriguez declared that
the outbreak of the insurrection in Cuba had found justifica-
tion and even applause on the part of Spanish statesmen who
had an interest in suppressing it; that the devastation of the
island by the insurgents was purely a measure of war, like the
devastation of the South by the march of Sherman's army;
that the Cuban Junta in New York was an organization which
of itself did not violate the laws, and that as soon as the Presi-
dent, by his i)roclamation of October 12, 1870 (16 Stats, at L.
1136), declared that it should cease to exist, it disbanded and
promptly obeyed the orders of the head of the nation; that
the natives of Cuba, far from being infected with a deadly
hatred of Spain, were before the insurrection faithful subjects
of that country, and after the insurrection were men who were
fighting for their independence.
Apart from these general considerations, Mr. Rodriguez
I
3772 INTERNATIONAL AKBITRATION6.
maintained that the embargoes were illegal under the law of
Spain of September 28, 1820, which was enacted in Madrid
and comumnicated to Cuba, and of which article 4 (Zamora's
Biblioieca, vol. 3, i). 218, word Extrangero) read as follows:
" Not even by way of reprisals in time of war, nor for any
other reason whatever, shall it be lawful to confiscate, seques-
trate, or embargo the said i)ro[)erty (the property of foreigners
in Spiiin); but it shall be lawful to do so when the prox>erty
behmgs either to the governments with which the Spanish
nation is at war or to their allies or auxiliaries.^ He also
referred to a law of December 4, 1845, which provided (Sangni-
neti, Diccionnrio de LeffiHlacionj vol. 3, p. 846) as follows:
" The property of foreigners shall never be confiscated, even
in case Spain is at war with the nation to which they belong.''
Mr. Kodriguez contended that the laying of the embargoes
was forced upon General Dulce, and that they were demanded
by some from corrupt motives and by others from feelings of
enmity. The decree of April 1, 1809, was not published in
the Oiwcia till the \iM\\ of that month, when General Dulce
was no longer able to resist the bands of volunteers who be-
sieged his palace and who on the 2d of June compelled him
to resign his offi(!e into the hands of General Es^nnar. . The
embargoes were executive, not judicial. General Espinar went
away, and General Cabellero de Kodas, who came to occujiy
his place as Governor-General of Cuba, issued the order of
September 2, 1869, by which Colonel Montaos was directed to
act as Judge advocate and institute legal proceedings against
the person supposed to be connected with the revolution. By
these proceedings it was intended to turn the ea-ecntire emhar-
gorttj first, into jiidina I einhanjoes^ and then into final confisca-
tion^ but tliey reached a practical result only in cases of fifty-
two persons, while the authorities went on laying executive
embargoes. When General Valmaseda, the liworite of the vol-
unteers, succeeded General Cabellero de Itodas as Governor-
General, he abolished the council of administration of embar-
goed i)ro})erty; but when King Aniadeo ascended the throne
of Spain he established the junta de la dvuda and ordered a
general revision of all cases of embargo, directing the cases
in which there were proofs against the parties to he sent to
the courts, and the release of the i)roperty where there were
no such proofs. This de<Tee received little attention from the
authorities in Cuba, and when the lieimblic was established
WAR CLAIMS* 3773
the embargoes were by the decree of July 12, 1873, ordered to
be abolished. The minister of Ultramar went to Gaba to en-
force this decree, but he was unable to do it, and the embar-
goes were not abolished till Marshal Martinez Oampos arrived
with 26,000 regular troops and ])iit the volunteers under con-
trol. Mr. Rodriguez contended that under the decrees of
Ai)ril 1869 no opportunity of delense was given to the own-
ers of the embargoed property, since by the embargo itself
they were deprived of their civil rights, and could not appear
before any tribunal in Cuba either in person or by attorney.
The political secretary informed the consul-general of the
United States at Havana that persons desiring to prove their
innocence might appear before the Spanish consul of the place
where they resided, and file with him testimony of trustworthy
persons, which would be transmitted to the Captain-General,
who would repeal the embargo if the testimony was satisfac-
tory to him. This was an executive, not a Judicial, proceeding.
Mr. Kodriguez also contended that in order to make the meas-
ures adopted by the United States during the civil war a
precedent for the measures adopted by the Spanish authori-
ties in Cuba, it would be necessary to show that the United
States seized and confiscated under its laws the property of
foreign subjects in the United States. Moreover, the pro-
ceedings of the tribunals in Cuba during the insurrection
were affected by the presence of armed bands of volunteers,
who invaded and occupied the court rooms. In conclusion,
Mr. Rodriguez made the following recapitulation :
*'l. In Spain no other emhargoeH of property than the one
decreed by the courts of Justice, both in civil and criminal
cases, are known. (See Escriche Diccionario, word embargo,)
" (2) No embargoes can be placed upon private property by
executive decree.
" (3) Out of 135 claimants before this commission, there have
been only four claimants against whose property a Judicial em-
bargo was placed, and this was on September 9, 1870. * * *
"(4) The embargoes under the decrees of April, 1869, were
political measures, intended for political purposes, and the
tribunals had nothing to do with them.
^*(5) According to the laws of Spain the property of all for-
eigners, Swedes and Americans and Russians, can not be
embargoed, se(iuestiated, or <;onfiscated for any reason at all,
even in times of war, by means of reprisals.
"(6) The Cuban em bar<i:oes were repealed as illegal in 1873,
and the repeal was never disapproved by the government which
succeeded the Republic.
i
3774 INTERNATIONAL ARBITRATIONS.
"(7) The embargfo and the confiscation of the property of
American citizens in Cuba, even by reason of self defense,
were forbidden by the laws above recited and by the treaty of
1795 between the United States and Spain.
" (8) Spain has conceded the restoration of the property of
the American citizens so seized, embar^i^oed, and confis-
cated. * * *
''(9) Neither the arbitrators nor the umpire have ever held
that the embargoes were rightful, and, on the contrary, the heavy
awards made in favor of Angarica, Delgado, Poey, Youngs,
Smith <& Co., and others have shown their indisposition to accept
the doctrine now set forth for the first time by the advocate for
Spain."
To the brief of Mr. Dnrant dated February
^' ^f J*"^'' 18, 1881, and the a<jcompanying brief of Mr.
Eodriguez, Mr. McPherson replied in a brief
dated August 30, 1881. He adverted to the fact that it
is common in the jurisprudence of nations not only to xmnish
acts committed by their citizens abroad, but also to ren-
der judgments against persons who are absent, such judg-
ments, like those of the tribunals in Cuba, not being final, but
subject to bo reopened on the appearance of the parties against
whom they were entered. In support of his ])08ition that a
state of war existed in Cuba, he further referred to For. Rel,
1874, pp. 859, 8()1, 8a'^, 904, 917; and in support of the position
that foreign recognition is not necessary to constitute a state
of war, lie referred to the fact that, while the earliest recogni-
tion of the existence of the civil war in the United States was
that of Great Britain on May 1.'^, 18G1, the Supreme Court of
the United States held in the Prize Cases (2 Black, 670) that
the first proclamation of blockade of Confederate ports on
April 19, under which English vessels were csiptured before
information of the British proclamation of neutrality had
reached the United States, was conclusive evidence of the
existence of a state of war, though in the same proclamation
belligerent rights were denied to the Confederate Government
by the declaration that any persons who, under its authority,
molested vessels of the I7nited States should be treated as
pirates. Mr. McPherson denied that Mr. Martos had ever
expressed acquiescence in the views of Mr. Sickles touching
the illegality of the embargoes.
As to the laws of 1820 and 1845, which were quoted by Mr.
Rodriguez, Mr. McPherson adverted to the fact that, in the
first section of the act of 1820, it was declared that the proteo-
WAR CLAIMS. 3775
tion given to foreigners and their property was conditional on
their respecting the constitution and laws of the country, and
to the fact that it was declared in the third section that they
were to enjoy ''exactly the same protection as the persons and
property of Spaniards." The fourth section, he said, with sig-
nificant caution expressly subjected to confiscation the prop-
erty of those who, in the time of war, became the enemies of
Spain or "the allies or auxiliaries of such enemies."* In re-
gard to the dissolution of the Cuban Junta in New York, Mr.
McPherson said that there was established in its i)]ace the
"Agenda General de* la Eepublica de Cuba," the president of
which was Miguel de Aldama, and which contributed to the
support of the insurgents by supplying them with money and
arms, as well as by soliciting unarmed men to go to Cuba.
From this source, it was contended, the insurgents derived
their main support.
On May 20, 1881, the umpire. Count Lewen-
Caie of XaoiM. haupt, made the following award :
" The Panchita estate was purchased by Mr.
Macias, a naturalized American citizen, August 2G, 1867, from
Mr. Ruiz, for $197,000, of which amount $60,000 were actually
paid at various times. The deferred payments were secured
by mortgage, and as the claimant failed to pay an installment
when it fell due, the mortgagee brought suit to foreclose the
mortgage.
» Late of September i?8, 1820,
Art. 1. The SpauiHh territory is au inviolable asylum for the persons
and for the property of foreigners, both when these foreij^ners reside in
Spain and when they live outside of her dominions; ])rovided, however,
that they respect the constitution and the lawH of the country.
Akt. 2. This asylum, as fur as the persons are concerned, shall be with-
out prejudice to the treaty stipulations already made with other powers;
but as in these stipulations the oD'enses of a i)olitical character can not be
spoken of, it is hereby enacted that no foreigners residing in Spain shall
be delivered to their respective governments, and that their political
otfenses shall not be considered comprehended among the crimes men-
tioned in the above-named treaties.
Art. 3. The persons spoken of in the foregoing treaties, as well as their
property, shall enjoy exactly the same protection as the persons and
property of Spaniards.
Art. 4. Not even as reprisals in time of war, nor for any other reason
whatever, shall it be lawful to confisc^ate, sequestrate, or embargo the
said property ; but it shall be lawful to do so when the property belongs
either to the governments with which the Spanish nation is at war or to
their allies or auxiliaries.
i
3776 INTERNATIONAL ABBITBATIONa
On the 4tb of October 1869 a decree was entered for the sale
of the property under foreclosure, but before the sale took
])lace the attorney of Mr. Macias filed, June 30, 1870, a peti-
tion in bankruptcy, and obtained an order staying the sale
directed by the decree of October 4, 1869; and as the bank-
rupt's property had to be placed in charge of someone desig-
nated by the court, Mr. Hock, brother-in-law and friend of
Mr. Macias, and who already had charge of the Panchita
estate, was appointed administrator.
^^ In the meantime Spanish ofUcials had on two different
occ^Ksions, in consequence of a confusion of name, by mistake
interfered with Mr. Macias's property, but there is no satisfac-
tory evidence that these incidents had any connection with
Mr. Macias's failure to meet the payment.
^•Tlie first act complained of, for which Mr. Macias is enti-
tled to indemnity, took place on the 20th of August 1870. On
that day a general embargo was decreed against Mr. Macias
to retroact to June 1869, and by this act he was deprived of
all his civil rights, and his lands, <;hattels, and credits became,
in fact, for the time ami occasion, the proi)erty of the govern-
ment. Mr. liuiz, tlie mortgagee, was appointed administrator
under the embargo, and phu'cd in possession of the plantation.
The proceedings in bankruptcy were stayed, and the planta-
tion was finally sold on the 7th of November 1871 to Mr.
Kuiz for $102,248.
"There is no doubt that the embargo was imposed with-
out Justification; that the property has not been returned,
although an order of disembargo was issued November 23,
1873, and that the claimant has in vain made efforts to
obtain restitution; but it is maintained on behalf of Spain that
if the bankruptcy proceeding had succeeded it would not
have arrested the execution of the decree already made for the
sale of the Panchita, and that had the i)roperty been sold
under proceedings in bankruptcy instead of foreclosure it
would not have brought one dollar more than it did bring.
"On the other side, the advocate for the Knited States con-
tends that if those i)rocee(lings had been continued and the
embargo had been removed the products of the estate would
have been under the control of the court and might have been
api>lied to the payment of the debts of the estate, and that
under the direction of the court there would have beQQ au
honest sale of the claimant's property.
WAR CLAIMS. 3777
'<^Iii the opinion of the umpire, the claimant in this case is
entitled to an indemnity equal to the amount which might
have been realized by a sale under bankruptcy proceedings,
with interest on the amount from the date of embargo.
''The claim includes the following items:
*'l. In respect of the estate Panchita, the value of the es-
tate, less the purchase money due at the time of the sale,
$263,000, with interest from November 23, 1873, the date of
the order of disembargo.
"The Panchita estate was bought in August 1867 for $197,-
000. The claimant contends that it had increased in value by
completion of a railroad and improvements; that he refused
in 1869 an oflfer of $300,000; that the yearly product was
1,500 hogsheads of sugar, and that the value ought to be esti-
mated at $400,000. That the value of the estate was mate-
rially increased is admitted by Spain, but it is contended that
the building of the railroad must have been foreseen in August
1867; that it is not proved that the yearly product ever was
more than 1,028 hogsheads, and that there is every reason to
doubt that it was improved to the value of $400,000. In any
case it is not ])robable that at a forced sale under bankruptcy
at the time of the insurrection the plantation would ha\e
brought a price corresponding to the actual value, and the
umx)ire is of opinion that an indemnity of $120,000 is a fair
compensation for the claimant's loss in conse(]uence of the
embargo of this estate.
*' 2. The value of the three crofts taken from the estate prior
to the sale, $150,000, with interest from November 23, 1873.
*'This claim is disallowed in consequence of the award made
with regard to the first item.
*'3. The value of the personal property on the estate Pan-
chita, not included in the valuation of the estate, $2,000, with
interest from June 1, 1869, the date when the embargo of
August 1870 took effect.
"This item is disallowed because the proj^erty is not included
in the official inventory, the correctness of which there is no
reason to doubt.
"4. The value of the villa and lots at Matanzas, $15,000,
with interest from June 1, 1809.
"On account of this claim an amount of $10,000 is allowed.
"5. The value of the household furniture in Havana, $3,000,
with interest from June 1, 1809,
3778 . INTERNATIONAL ARBITRATIONS.
^'This claim is admitted by Spain as far as the principal is
concerned.
"(J. The value of the debt secured by mortgage on the estate
Ariadne, $5,000, with interest from June 1, 18(>9,
"Mr. Silveira, the owner of the estate, wrote on the 4th of
March 1871 the following letter to the bureau of embargoed
proi)erty at Matanzas:
** 'I have just arrived from Spain, and for this reason I was
not aware that the property of Mr. Jos6 Manuel Macias lias
been embargoed, and as 1 have to deliver to the said Mr.
Macias in the month of May of the present year the amount
of $5,000 lor an installment I owe him for the estate of
Ariadne, 1 will hold the said amount at the disposal of the
government, com])lying with the circular about the matter,
with the understanding that out of the said amount 1 have to
deduct $433, which 1 paid for said Macias, and by account of
said installment, to the city council of Matanzas for revenue
taxes owed by the said estate at the time which it belonged to
tlie said Maeias, and which payment was made before the
decree of embargo.'
"As it is reasonable to suppose that the above amount of
$4,567 wouhl have been i)aid at the time if the embargo had
not existed, this amount is allowed, with interest from June 1,
1871.
"7. The value of the claimant's interest in the sugar embar-
goed on the estate Socorro, $1,023.33, with interest from May
30, 1870, the date of the embargo.
"The principal is allowed.
"8. Compensation for loss of business and credit, $100,000.
"This claim is disallowed.
"The umpire under^itands that it is not contended that the*
claimant has acquired under the decree of November 23, 1873,
other rights than those conceded, which the umpire considers
acquired under the agreement of 1871, and that in conse<]uenco
there is no necessity for the umpire in this case to examine the
question whether the commission has Jurisdiction to hear and
determine a case of violation of rights founded on the said
decree.
"The umpire hereby decides that the claimant is a citizen of
the United States within the meaning of the agreement of 1871,
and that the following amounts be paid on account of this
claim :
"One hundred thirty-four thousand twenty-three dollars
thirty-three cents, with six i)er cent interest a year from the
WAB CLAIMS. 3779
20th of August 1870, the date of the embargo, and four thou-
sand five hundred sixty-seven dollars, with six per cent inter-
est a year from the 1st of June 1871 to this day.'^
Jo84M, Maeias, No. 52, Span. Com. (1871).
The rest of the awards for embargo claims
Thompton's Case, were as follows :
The claimant's estate in Cuba was twice
embargoed by the Spanish authorities on the ground that,
although she was a native of the United States, she was
the wife of Juan D. Duggan, an insurgent convict. She and
I^uggau had for years held themselves out as man and wife,
which fact,if true, would have given Duggan a legal interest
in the property; but it was not true, Duggan having a law-
ful wife in another place. The first seizure of the property
was made on April 26, J 869, and the embargo continued till the
5th of June. The second seizure was made on September 26,
1869, and under this embargo the authorities held the property
till September 10, 1870, when it was restored to the claimant.
When the first seizure was made, she asserted title to the
property, but at the same time declared herself to beDuggan's
wife. . There was no evidence that she notified the authorities
that she was not his wife till November 11, 1869, nearly a
month after the second seizure: and it was contended on the
part of Spain that the property was held by the authorities no
longer than was necessary to satisfy themselves as to the
actual status of the claimant, and the real ownership of the
property.
The claimant asked indemnity on account of both seizures;
on account of increased living expenses, and damages to the
property, resulting from the embargo; and also on account of
the failure of the authorities to restore a potreroj or cattle
farm, which was part of her estate.
The umpire allowed damages for the net value of the crop
of 1869-70 gathered during the second seizure, with interest
at 6 per cent from June 30, 1870, the date when the last pro-
ceeds were received. He refused to allow damages for in-
creased living expenses prior to the production by the claimant
(after the second seizure) of proofs of her real nationality.
He allowed the sum of $1,000 as compensation for the value
of the place as a home after that time. He also allowed $2,000
as compensation for the detention of the potrero from Septem-
5627— VOL. 4 35
3780 INTERNATIONAL ARBITRATIONS.
ber 10, 1870, to May 31, 1873, the date of the filing of the
memorial.
The umpire refused to allow damages as a matter of course
for injuries " which embargoed property always suffers.'' There
was, said the umpire, no evidence whatever in the case that
the injuries for which indemnity was asked ''were caused by
any specific act of the Spanish authorities." They were only
such as were '' the result of use, accident, and the like," and
no indemnity could be allowed ou that account. In making
this ruling the umpire refused to be bound by the 4^ision of
one of his predecessors, M. Bartholdi, in the cases of J. G.
Angarica, No. 13, and J. M. Delgado, No. 31, in which Spain
was held to be liable '' for unjust detention and use of prop-
erty, cuf well as for damages tchich embargoed property always
suffers^
('oiint Lewenhaupt, umpire, case of Alfred G, Compion, executor of Ana
Thompson, No. 39, Span. Com. (1871), May 3, 1882.
The claimant asked damages for the seizure
Bivat's CaM. of his plantation by Spain under an executive
decree issued about October 1 , 1869. His prop-
erty was restored in July 1870. The arbitrator for Spain con-
tended that the treaty of 1795 did not cover embargoes of real
property ; that the prohibition of the seizures of "effects'' could
not apply to real estate, and that the prohibition of embargoes
referred only to the exercise of the jus angarice; that a prohibi-
tion of embargoes was found in similar language in various other
treaties of the United States, and was understood to have that
signification. It was also contended that Spain had a right to
embargo property under the circumstances existing at the time
in question; that at that time the Government of Spain had
invested the (Tovernment of Cuba with extraordinary and dis-
creticmal powers; that, owing to the condition of affairs in Cuba,
the (lOvernor-General had for many years possessed such pow-
ers as were vested in the commanders of besieged places; that
such powers were conferred by the royal ordinance of May 1825,
and were renewed and made common to all the governors in
Cuba by the royal orders of March 21 and May 26, 1834; that
similar powers were exercised by the authorities in Cuba in
1795, and that they constituted the regular course of proceed-
ings in that island; that such being the rule for Spaniards as
well as for foreigners, it could not be expected that a special
WAR CLAIMS. 3781
court with special proceedings should have been established
for citizens of the United States in 18G9.
The arbitrator for the United States answered:
*< I understand it to be argued that under the law of Spain
the will of the Governor-General of Cuba is the law of that
island, and that in any case his authority is justification of the
seizure of property. In my view this law is not such a law as
was intended by the 7th section of the treaty of 1795. By that
treaty Spain agreed in effect to proceed against the property
of American citizens for offenses defined by law, for penalties
imposed by law, and by a regular course of judicial proceed-
ings. A law which vests in the Governor-General the pow-
ers to define offenses, affix penalties, and to proceed summarily
or administratively does not seem to me to meet the require-
ments of the treaty.
'^ Even if a state of things existed which justified a summary
procedure it could not justify the infliction of penalties not
authorized by law. The suspension of courts is not a suspen-
sion of law.'^
For the losses caused by the embargo and detention of the
claimant's estate the arbitrator for the United States allowed
the sum of $31,000, with interest at 6 per cent from June 1,
1870, and $5,000 more for certain expenses connected with the
embargo, with interest at 6 per cent from December 1, 1870.
The umpire, Count Lewenhaupt, concurred in the opinion of
the arbitrator for the United States and adopted his award.
Case of liamon liivM y Lamar y No. 73, Span. Com. (1871), February 22,
1883.
"The injury complained of is the seizure of
CMeofXadan. claimant's property in August 1869 under an
executive decree.
"It is contended by Spain that the authorities in Cuba were
justified by the right and duty of self defense in temporarily
sequestrating the revenues of native Cubans residing in the
United States until assurance could be obtained that such
revenues would not be devoted to the support of the insurrec-
tion; that it was the misfortune of the claimant to belong to
that class of x)ersons, and that it was his fault that by his par-
ticipation in a previous insurrection he had rendered himself
a proper object of suspicion in the occurrence of a new insur-
rection.
" The umpire is of opinion that under the agreement of 1871
it is immaterial whether or not the claimant took part in
a previous insurrection; that there is no proof that he had
3782 INTERNATIONAL ARBITRATIONS.
done anything to cause him to be suspected of participation in
the insurrection of 1868, and tliat in consequence the seizure
was not justified."
Count Lewenhaupt; umpire, case of Critlohal Madan, No. 45, Span. Com.
(1871), February 22, 1883.
Case of Mora ft '^The claimants, partners of the New York
Arango. firm of Mora & Arango, are recognized by
Spain as naturalized citizens of the United States.
" On the 18th of February 1870 the governor- general of Ouba
issued a decree of embargo against the property of Fausto
Mora on the ground that, according to information received
from the Spanish consul in New York, Mora bad contributed
money in favor of the Ouban cause. On the 31st of July this
embargo was annulled in consequence of a telegram from the
Spanish minister in Washington, and on the 21st of August
the minister wrote to the governor-general that the informa-
tion given by the consul was erroneous. In the meantime the
lieutenant-governor at Sagua la Grande had extended the
embargo to the firm Mora & Arango by a decree of the 13tb of
April, and this decree was in fact a prohibition for the firm to
do business in his district; but this second embargo was,
according to the text of the decree, issued in consequence of
the first, and it was understood by all parties that when the
joint embargo was raised the said prohibition ceased. • ♦ •
<^The umpire is of opinion that there is no proof that the
claimants were implicated in the insurrection and that the em-
bargoes were not justified. With regard to the first embargo,
the umpire is further of opinion that there is no proof that
said embargo caused any loss, and that therefore no indemnity
is due.
"The following claims are made on account of the second
embargo :
" 1. Indemnity for certain debts, which the claimants sup-
pose that they would have collected if no embargo had been
issued.
"The umpire is of opinion that there is no proof that the col-
lection of those debts was delayed or prevented by the embargo;
that a certain amount was recovered after the embargo, and
that the greater part was lost because the debtors became in-
solvent. No allowance is made.
"2. Indemnity for stoppage of business with Ouba during
WAR CLAIMS.. 3783
the embargo and for dissolation of the firm on the Ist of Angnst
1870. ♦ ♦ ♦
^' The nmpire is of opinion that it is immaterial whether or
not the embargo had the remote effect to canse the dissolation
of the firm. ♦ * *
<< The firm was in fact, by the decree of the governor at Sagna
la Orande, illegally warned off from trading with Cuba, and so
far the case is of the same kind as those of vessels warned off
from trading with a certain port without sufficient reason.
<<It does not seem that any similar case has been decided by
the commission ; but it is usual in such cases to award indem-
nity for prospective earnings. The loss is, however, in the pres-
ent case of a very speculative character, as depending upon
most uncertain contingencies ; and therefore the only allowance
made is the sum of $3,225, in the nature of interest on the
capital of the firm, which is stated in the record to have been
$184,300. ♦ • ♦
^< For these reasons theumpire hereby decides that an amount
of $3,225, with 6 per cent interest from August 1, 1870, to this
day, be paid on account of this claim."
Count Lewenhaupt, umpire, case of Mora Sf Arango, No. 50: Spanish
Commission (1871), February 22, 1883.
7. Miscellaneous Cases.
In 1828 the American ship Franklin was
lin."
Case of tiie "Frank- ^^^j^g^i j^ ^pper California by order of the
Mexican general commanding at San Diego.
There were no judicial proceedings, and, after a long deten-
tion, the master, finding that it was the intention of the gen-
eral to get possession both of the ship and the cargo, ran away
with his vessel to the Hawaiian Islands. The ship, when she
left Boston for California, was laden with a valuable assorted
cargo, which was largely sacriftced by the injurious conduct of
the Mexican general. An award was made by the umpire of
the sum of $119,966.39.
Charles Bradbury , William Oliver, and E, Copeland, jr, v. Mexico: Com-
mission under the convention between the United States and Mexico of
April-11, 1839.
The claimant, a citizen of the United States,
Longftroth's Case, engaged in business at Matamoras, was, upon
a certain occasion when he was about to cross
the Eio Grande, searched by the customs officer upon suspi-
3784 INTERNATIONAL ARBITRATIONS.
cion of having money upon his person which he was attempt-
ing to export without paying the duty. The oflScer, finding
that his suspicions were not well grounded, left him at liberty
to proceed upon his journey. For this detention claimant asked
925,000. Some time afterward, during an insurrection, the
civil and military government of the district in which claim-
an-t resided issued a decree declaring the country in a state of
siege and prohibited all commercial traffic and intercourse
with the insurrectional towns. Claimant asked compensation
for losses suffered by him in consequence of this decree. The
commissioners disallowed both claims. They held that the
action of the customs officer was legal, and that the decree
was lawfully enforced for military purposes and afforded no
grounds for complaint.
James M, LongBirolh v. Mexico, No. 68 : Convention of July i, 1868.
By Article IX. of the treaty between the
Wnlfing'i Case. United States and Mexico of 1S31 it was pro-
vided : " The citizens of both countries respec-
tively shall be exempt from compulsory service in the army or
navy." Keferring to the clause, Mr. Wadsworth, United States
commissioner, delivering the opinion of the commission in
Robert Wulfing v. Mexico^ No. 345, MS. Op. I. 639, said:
" The treaty also condemned the forced military service ex-
acted of the claimant by General Campos. An insurgent party
engaged in revolt against the government may often be justly
styled robbers, but an American citizen can not be forced to
take up arms against them. These had just defeated Colonel
Tierro, and had they succeeded in taking the town could not
have regarded claimant as a neutral. We think it best to give
full force and effect to the clause of the treaty in question."
*'ln the case of the ^Siempre Viva Silver
ase 0 e lempre j^f^^i^^g Co7nj)any v. Mexico^'* No. 98, the um-
pire observes that the chief foundation of the
charge against the Mexican Government for the losses suf-
fered by the company is that on various occasions Mexican
officers by authority of law obliged the workmen at the com-
pany's mines to serve in the national guard in which they
were enrolled. The war wliich then existed in the coun-
try rendered this step a necessity. It was one of those mis-
fortunes to which natives as well as foreigners were exposed.
The owners of the mine in question were subject, like all other
inhabitants, to the law of the country whether enacted after
WAR CLAIMS. 3785
or before tbey acquired the mines; bat in this instance the
decree of April 12, 1862, which was enacted many months be-
fore the company was organized, declared that no Mexican
between the ages of twenty and sixty years could excuse him-
self from taking up arms; so that it well knew the risk to
which both by the written law and the natural necessities of
the war which then existed it was exposed. In the opinion of
the umpire, no claim can be made against the Mexican Otov-
emment for losses arising to foreigners out of the legal obli-
gation which bound Mexicans to military service."
Thornton, nmxure, May 26, 1874, convention between the United States
and Mexico of Jnly 4, 1868, MS. Op. III. 63. Followed by the commia-
sioners in Germania Mina Prieta Company v. MexicOf No. 612, MS. Op.
V.242.
^'The umpire has on more than one occa-
061^1 Cue, Bion given his opinion that the Mexican Gov-
ernment, strictly speaking, bad the undoubted
right to impress into its military service native Mexicans
employed, whether by American citizens or otherwise. In
the present instance one of the great causes of the losses
complained of by the claimant with regard to his cotton crops
was the want of labor and the impossibility of obtaining it by
reason of that impressment; but for this the Mexican Govern-
ment can not be held responsible; it is one of the misfortunes
inevitable in a state of war."
ThomtoD, ampire, July 15, 1876, John Cole v. Mexieo, No. 948, Am.
Docket, convention of July 4, 1868, 6 MS. Op. 497. 8. P., Thornton, um-
pire, April 29, 1876, Cordillera Gold and Silver Mining Co, v. Mexico, No.
734, MS. Op. VI. 419; Fayette Anderson and William Thompson v. Mexico,
No. 333, MS. Op. III. 582 ; Trinidad and San Jos4 Silver Mining Co. v. Mexico,
No. 720, MS. Op. VI. 417.
^^ This claim is put in on behalf of Messrs.
^^?«S^* Kerford & Jenkin, who have been established
in Zacatecas, as merchants, for eighteen years;
and have been engaged in trade with Santa F6, Ohihuahua;
and other places in the adjoining districts.
<^The facts and circumstances alleged areas follows: In the
year 1843 the Congress of the United States passed an act
authorizing the export of merchandise overland to Canada,
and to Mexico, via Santa F^, with the benefit of a drawback of
duties, and the claimants had, in 1846, prepared in England,
a quantity of goods suited to the Santa ¥6 trade, and appar-
ently not suited to any other market. j
3786 INTERNATIONAL ARBITRATIONS.
<< The goods arrived in Philadelphia by the ship StiranaCj in
June 1846; the customs entry is dated 19th June 1846; at
which time war existed between the United States and Mexico,
and all commercial intercourse was stopped.
<< The agents of the claimants, on the 18th of June 1846,
petitioned the Government of the United States, stating that
these goods had been prepared expressly for the Santa ¥6
trade, and, being suited to no other market, immense loss
would be sustained if they were not permitted to carry out
their views; and that they had five hundred mules, forty
wagons, and forty-five men waiting at Fort Independence for
the goods, at the charge of Mr. Kerford and partners; they
therefore prayed permission to send their goods forward, with
benefit of drawback.
<< The United States Government granted the application
^ under the peculiar circumstances involved, and without giving
rise to any inference as regards the condition of Santa F^, or
to act as a precedent in other cases.'
" The export entry was dated June 29, 1846, for 986 pack-
ages [of] goods to Santa F^ and Chihuahua, by the route of
the Missouri River; and the invoice value, exclusively of
charges, was £14,210 IGs. lid.
*' The goods arrived at Fort Independence, in transitu for
Santa Fe, in New Mexico. The inspector's certificate is dated
the 30th July 1846. The caravan, consisting, according to Mr.
Kerford's statement, of 46 wagons, (>00 mules, 250 oxen, and
about forty horses, valued at about $80,000, but, according to
Mr. Gentry's statement, of 46 wagons, 500 mules, 350 oxen,
and 20 horses, valued at about 868,150, started from Fort In-
dependence, under the care of 80 armed men, in the month of
August. The precise day is not stated, but it was late in the
season, the month of May being the best month to start in.
"After six weeks' march, without interruption, they were
overtaken by a detachment of Missouri volunteers, under
Colonel Price, to whom Mr. Kerford exhibited the permit and
other papers received from the custom-house at Philadelphia,
and represented that he was a British subject. Colonel Price
examined every wagon, and detained the caravan ten days,
and then suffered it to proceed, and they arrived at Santa F^,
according to Mr. Kerford, on or about the end of October, but
the consular certificate for the return of the duties was dated
Santa Fe, October 7, 1846.
WAR CLAIMS. 3787
" On their arrival at Santa F^, Mr. Kerford waited on Gen-
eral Kearney, the United States commander of the district,
and complained to him of the treatment he had received from
Colonel Price. General Kearney assured him that the road
was open to Chihuahua, and that he might proceed with his
caravan without risk of further interruption, upon which they
proceeded for several days, and had arrived in a wild country,
where no supplies or provisions could be obtained, when they
were stopped by another body of American volunteers, under
the command of Captain Walton, who, on being informed that
the goods were British property, allowed them to proceed, but,
at the end of two days, sent a body of 200 men after them,
who commanded them to halt, and mounted guard around the
wagons, with orders to shoot the first man who should attempt
to move. They thought it best to submit, although capable of
forcing a passage, as the men were all accustomed to the use
of firearms.
<^ About a month afterward, Colonel Doniphan took the
command of the forces. It appeared to be the duty of the
claimant to submit, and he, with the caravan, was detained
lor two months, according to Mr. Kerford, but according to
Mr. Gentry for six weeks, during which the men were exposed
to the inclemency of a severe winter and were reduced to
extreme want, and many of the mules and oxen perished.
" The claimant applied to the commissary for relief, but none
was afforded, as the troops were on half rations. During the
whole of this detention the claimant made repeated applica-
tions to be released, which was refused on the ground that the
introduction of so much valuable property, though it did not
include any munitions of war, would be a great advantage to
the enemy from the duties accruing upon it.
**At length Colonel Doniphan moved forward to attack
Chihuahua, the caravan being ordered to travel in the rear,
until a battle took place, in which the Americans were success-
ful. Even then the caravan was not allowed to proceed, but
was detained for several weeks (six weeks, according to Mr.
Gentry), when, the vigilance of the guard having been relaxed,
they prosecuted the journey and reached Chihuahua the latter
end of February 1847, having been detained three and a half
months beyond the time usually required for the journey.
"In consequence of this delay, the goods were sold at nearly
thirty per cent below what they would have realized from
them at an earlier period. ♦ • •
/
3788 INTERNATIONAL ARBITRATIONS.
<^The value of the 896 packages of goods sent firom England
was, as per invoice, exclusive of charges, £14,210 16s. lid., or
about $70,000. The Santa F^ trade was stopped when the
goods arrived, and as the owners would have been exposed to
immense loss thereby they petitioned the United States Treas-
ury to permit in this instance a deviation from the circular of
11th June 1846, prohibiting the export in the way desired.
<<The Treasury accordingly permitted the export, with bene-
fit of drawback, 'without giving rise to any inferenoes as
regards the condition of Santa F^, or to act as a precedent in
other cases,' and on receipt of the consular certificate of the
arrival of the goods at Santa F^, the drawback, amounting to
$53,108.94, was repaid to the claimants.
<< After various delays the goods (or rather the greater part
of them, a portion having been sold, as is alleged, to purchase
supplies and food) arrived at Chihuahua in February, 1847,
where they were sold for $200,000, a sum which, after the most
liberal allowance for expenses, must have left a handsome
profit on the enterprise. So that by this act of grace and
courtesy on the part of the United States Government the
claimants were saved immense loss and enabled to prosecute
their adventure to a successful issue. They received back a
sum of $53,108.94 for duties, and the mules, oxen, &c., pro-
vided were rendered available, which otherwise would have
been [ofj but little value. The claim, therefore, is not for actual
loss sustained, but for alleged diminution of profits arising oat
of the detention of the caravan in the course of the journey.
^'Much stress has been laid, on the part of the claimants, on
the permission io export under drawback, which has been
incorrectly and improperly termed a license. But there is no
ground for the belief that anything more was intended than a
permission to the claimants to undertake an adventure which
was at the time legally prohibited. It can not be imagined that
the United States (Tovernnient had the slightest intention to
confer a privilege which might interfere materially with their
operations against the enemy. Indeed, the reservation ex-
pressly made in granting the petition was evidently intended
to exonerate the United States Government from all respon-
sibility and to intimate to the petitioners that they must take
their chance in pursuing the adventure.
"They knew that war was being carried on, and must also
have been prepared for difiiculties and hindrances incident to
WAR CLAIMS. 3789
a distarbed state of affairs. The permission was not a privilege
granted to them as British subjects, but was equally granted
to other traders, citizens of the United States, who were placed
in similar circumstances. It was a mere matter of favor on the
part of the United States Government to allow the trade to be
carried on at all by claimants and other traders, and they
embarked in it with a knowledge of the distarbed state of the
country to which the adventurers were bound.
" Much reliance has been placed on the case of Harmony v.
Mitchell (I Black. Bep. 549) as affording a precedent in sup-
port of this claim, but the two cases differ essentially, and
the opinion of the court, delivered by Mr. Chief Justice Taney,
is clearly adverse to Messrs. Eerford & Jenkin.
<< Harmony and MitchelVa case.
" 1. The jury found for Harmony on the grounds that he was
not trading with the enemy; that his goods and property were
seized and part of them converted to the public use without
the plea of urgent or immediate necessity, and that Harmony
never resumed possession after the seizure.
" 2. The property of Harmony was left in Chihuahua when
the place was evacuated by the Americans (the goods having
been unsalable during their occupation), and were confiscated
by the Mexicans on their return and wholly lost to Harmony.
^< 3. The seizure in this case took place at San Eleasario, in
the province of Chihuahua, at which place Harmony (having
determined to proceed no further) was compelled by Colonel
Mitchell to remain with and accompany the troops.
^^Kerford & JenkMs case,
<< 1. In the case of Messrs. Kerford & Jenkin there was no
seizure, nor has any been alleged. Their avowed object was
to go forward for the purpose of trading with the enemy, and
they continued all along in the possession of their goods.
" 2. The property of Messrs. Kerford & Jenkin was safely con-
ducted to Chihuahua, and realized a very large sum, $260,000,
by claimants' statement.
" 3. The complaint of Messrs. Kerford & Jenkin is not that
they were not allowed to leave the Army and proceed no fur-
ther, but that they were not allowed to precede the Army of
the United States to the place which they were going to attack.
"The question, therefore, in this case resolves itself into one
3790 INTERNATIONAL ARBITRATIONS.
of detention. The commander of the United States forces had
undertaken an expedition against the city to which Messrs.
Kerford & Jenkin's caravan was bound. The arrival of the
caravan would certainly have put the inhabitants of Chihua-
hua in a more favorable position for frustrating the expedition.
Indeed, it is admitted in the plea put in on behalf of the claim-
ants that the arrival of the caravan was anxiously expected,
on account of the duties payable to the governor of the place.
The enemy would have derived a further advantage in obtain-
ing information respecting the strength and resources of the
invading force, and part of the men employed to conduct the
caravan were Mexicans.
<< These circumstances are surely a sufficient justification of
the control exercised by Colonel Doniphan over the movements
of Messrs. Kerford's caravan. Similar control was exercised
over other traders, citizens of the United States, without com-
plaint on their part.
<< It is contended that, as neutrals, Messrs. Kerford stood in
a better position, and could not properly be impeded in carry-
ing on their trade; but, admitting for argument sake that they
were neutrals, this does not alter the case. It must be remem-
bered that the trade in question had been stopped, and was
only allowed under special circumstances and with a special
reserve. It was not an open road on which a friendly power
had a right to travel freely and without question.
'* The case of Harmony v. Mitchell has been relied on as a
precedent, but the following passage from the * opinion of the
court,' delivered by Mr. Chief Justice Taney, is conclusive in
favor of the right of detention, for he says that, ^up to the period
at ichich the trenpaHs is alleged to have been committed at San
Eleasario, in the province of Chihuahua^ it is conceded that no
control was exercised over the property of the plaintiffs that is
not perfectly justifiahle in a state of tcarJ*
"This seizure took place on 10th February 1847, at which
time Harmony's property must have been detained for a
longer period than that of Messrs. Kerford & Jenkin. On the
whole review of the case, it appears:
"1. That no engagement was entered into by the United
States Government which can be construed into a license to
trade with the enemy or to pursue a course calculated to
interfere with the military operations of the United States
forces.
WAR CLAIMS. 3791
<< 2. That the detention by which the alleged losses were
occasioned arose out of the state of war, and was a contin-
gency incident to any trading adventure undertaken under such
circumstances; and that there is, therefore, no fair claim for
compensation against the Oovernment of the United States."
Bates, umpire, case of Kerfwd tf Jenkin, convention between the
United States and Great Britain of February 8, 1853. (8. Ex. Doc. 108, 34
Cong. 1 sess. pp. 351-375.)
<< Bailey & Leetham, claimants, No. 386.
Caseofthd"Labiian.''The claimants were the owners of the British
steamship Lahuan^ which, on the 5th of No-
vember 1862 was in the port of New York laden with a cargo
of merchandise destined for Matamoras. On that day her
master presented the manifest to the proper officer of the
custom-house at New York for clearance, but such clearance
was refused, and the refusal continued up to the 13th of
December 1862r, on which day it was granted. The memorial
alleged that this detention was by reason of instructions re-
ceived by the custom-house officers from the proper authorities
of the United States to detain the Ldbuan^ in common with
other vessels of great speed destined for ports in the Gulf of
Mexico, to prevent the transmission of information relative to
the departure or proposed departure of a military expedition
fitted out by the authority of the said United States. The
memorial claimed damages for the detention, $38,000, being at
the rate of $1,000 per day, the memorial alleging that on a
former seizure and detention of the same vessel, from February
to May 1862, when libelled as prize, this rate of compensation
for the detention had been awarded to the owners by the dis-
trict court of the United States.
" On the part of the United States it was contended that
the detention of the Labuan^ under the circumstances alleged
in the memorial, was within the legitimate and recognized
powers of the United States; that it was no infringement upon
the rules of iuternational law or upon any treaty stipulations
between the United States and Great Britain, and that it gave
no right of reclamation in favor of the claimants against the
United States; that the right of self- protection, by temporarily
refusing clearance to vessels through which information of
great importance in regard to military movements is likely to
reach the enemy, must be regarded as of necessity permissible
to a government engaged in war; that at the time of this
I
^
3792 INTERNATIONAL ARBITRATIONS.
detention important military movements then in progress in
connection with the occupation of New Orleans by the Federal
forces, including the dispatch of General Banks, with large
reinforcements, to supersede General Butler in the command
there, were in progress, and made it of the utmost importance
that these movements should be carefully kept secret from the
rebels; that the detention of the Labuan was not by any dis
crimination against her as a British vessel or against British
vessels as such. All vessels capable of such a rate of speed
as to make their departure dangerous in this regard were de-
tained alike; that no claim had ever been made by the British
Government, through the usual diplomatic channels, upon the
United States for compensation; and that it could not be
believed that such a claim would not have been made if Her
Mt^esty's Government had considered such a claim valid. The
counsel for the United States cited, in this connection, the let-
ter of Mr. Stuart, Her Majesty's minister at Washington, to
Mr. Seward, of 1st August 1862 (U. S. Dip. Cor. 1862, 1863,
part 1, p. 273), upon a somewhat analogous question^ in which
Mr. Stuart says :
" * I have been instructed to state to you that Her Mi^esty's
government, after considering these dispatches, in connection
with the law officers of the crown, are of opinion that it is
competent for the United States, as a belligerent power, to
protect itself within its own i)orts and territory by refusing
clearances to vessels laden with contraband of war or other
specified articles, as well as to vessels which are believed to
be bound to Confederate ports; and that so long as such pre-
cautions are adopted, equally and indifferently in all cases,
without reference to the nationality or origin of any particular
vessel or goods, they do not aftbrd any just ground of com-
plaint.'
" The case of the detention of the Labuan, it was contended
on the part of the United States, was governed by the same
principles and justified by the same rules as the cases referred
to by Mr. Stuart. The counsel referred to the decision of the
commission upon the American claims against Great Britain,
growing out of the prohibition of the exportation of saltpetre
at Calcutta (American claims, Nos. 11, 12, 16, 18), hereinbefore
reported, and in which such prohibition was held by the com-
mission not to involve a violation either of international law
or of treaty stipulation, and urged that the principles which
would sustain the validity of such prohibition must also in-
clude such a case as the detention of the Labuan.
WAR CLAIMS. 3793
<^ The coansel for the claimant maiDtained that the detention
of the LaAuan was in effect a deprivation of the owners of the
nse of their property for the time of the detention for the pab-
h'c benefit; that it was in effect a taking of private property
for public use, always justified by the necessity of the state,
bat likewise always involving the obligation of compensation.
He cited 3d Phillimore, 42, and Dana's Wheaton, 152, n.
^^ The commission unanimoasly made an award in favor of
the claimant for $37,392.»
Am. and British Claims Commission, treaty of B(ay 8, 1871, Art. XII.
Hale's Report, 171.
The Tubal Cain, a British steamship, was chartered at New York for a
▼oyage to Matamoraa via Havana and back to New York. April 8, 1863,
being loaded and ready to sail, she was seized by the United State author-
ities at New York, on the ground (1) that she was undertaking an illicit
voyage to the blockaded ports of Texas; (2) that she was carrying contra-
band of war destined for the Confederacy, and (3) that she had on board
passengers (one of whom was an agent of the Confederate goverment)
engaged in contraband trade with the enemy. May 26, 1863, Mr. Edwards
Pierrepont, acting for the War Department, made a report inculpating
two of the passengers, but exculpating the owner and charterer of the
vessel. He held, also, that there was probable cause for the previous
detention, but recommended that the vessel be discharged. She was not
surrendered till July 16. The commission unanimously awarded $4,800
for her detention from the date of Mr. Pierrepont's report till her final
discharge. (Hale's Report, 161.)
A claim was made against the United States
Cms of Bank Shares, on accoant of the cessation of dividends upon
and the depreciation in the value of certain
shares in a New Orleans bank, ^4n consequence of the war in
America between the Northern and Southern States, and of
the occupation of New Orleans and of the bank by General
Butler." On demurrer the claim was unanimously disallowed.
Am. and British Claims Commission, treaty of May 8, 1871, Art. XII.
Hale's Report, 168.
8. Conclusion of Peace.
Case of the <«J6hn:*' By the treaty of peace between the United
Treaty of Peaoe— States and Great Britain, concluded at Ghent
Hotioe of. December 24, 1814, and ratified at Washington
February 17, 1816, it was provided (Article II.) :
<^ Immediately after the ratifications of this treaty by both
parties, as hereinafter mentioned, orders shall be sent to the
/
k
3794 INTERNATIONAL ARBITRATIONS.
armies, squadrons, officers, subjects and citizens of the two
Powers to cease from all hostilities. And to ])revent all causes
of complaint which might arise on account of the prizes which
may be taken at sea after the said ratifications of this treaty, it
is reciprocally agreed that all vessels and effects which may be
taken after the space of twelve days from the said ratifications,
upon all parts of the coast of North America, from the lati-
tude of twenty-three degrees north to the latitude of fifty
degrees north, and as far eastward in the Atlantic Ocean
as the thirty sixth degree of west longitude fh)m the meridian
of Greenwich, shall be restored on each side; that the time
shall be thirty days in all other parts of the Atlantic Ocean
north of the equinoctial line or equator, and the same time
for the British and Irish Channels, for the Oulf of Mexico,
and all parts of the West Indies; forty days for the North
Beas, for the Baltic, and for all parts of the Mediterranean;
sixty days for the Atlantic Ocean south of the equator, as
far as the latitude of the Cape of Good Hope; ninety days for
every other part of the world south of the equator; and one
hundred and twenty days for all other parts of the world,
without exception."
On March 5, 1815, sixteen days after the exchange of the
ratifications of the treaty, the American schooner John^ bound
from Matanzas, in Cuba, to Portsmouth, New Hampshire, was,
when in latitude 31^ '40' north, and longitude 78^ 10' west
from the meridian of (ireeuwich, and therefore within the
zone in which captures were to be ineffectual after twelve
days, seized as prize by the British ship of war Talbot^ Maud-
esley, acting commander. The Talbot took the schooner in
tow, and a few days later wrecked her by mistakenly steering
her ashore on the Island of Cuba. The Talbot escaping the
same fate by suddenly putting about, took the master and
crew from the Johuj whicrli was abandoned as a total loss, and
carried them to Jamaica, where they were held as prisoners of
war till the 29th of March, when news of the peace was
received there and they were released. Subsequently the
owners of the schooner brought suit in admiralty against
Lieutenant Maudesley for the value of the vessel and cargo.
On December 18, 1818, Sir William Scott decided against
them, on the ground that the commander of a ship of war,
when notice of peace had not reached him, was not personally
liable for a capture.' He ex])res8ly declined to determine
whether there was any liability on the part of the British
Government. The owners, in the prosecution of the suit, in-
i The John, 2 Dodson, 386.
WAR CLAIMS. 3795
carred heavy expenses, and by tbis and other circumstances
were delayed in invoking the interposition of the United
States. At lengtb, however, they applied to their govern-
ment, by which their claim was diplomatically pressed; and it
finally came before the mixed commission under the conven-
tion between the United States and Great Britain of February
8, 1853.
Thomas, agent and counsel for the United States, and Clark,
Hayes, and Tuck, claimants' counsel, cited authorities to the
following points :
"A treaty of peace or a truce binds the contracting parties
from the time of the signature, or from its ratification, where
a ratification is necessary. Hostilities are to cea-se from that
time, or at the expiration of such other periods as may be pro-
vided in the treaty, in various districts and latitudes. (1
Kent's Com. 159; 2 Wheaton, 291; 1 Wildman's Institutes of
International Law, 158.)
"The right of capture depends on the fact of war. When
the war ceases, the right ceases.
" Ignorance of the peace can confer no right of capture in
time of peace. The right, being wholly dependent on the fact
of war, is necessarily independent of the knowledge of the
captor. (1 Wildraau's Institutes, loO.) •
"In case of capture when peace exists, restitution and com-
pensation is to be made. (Puffendorf, lib. 8, chap. 7, sec. 9;
Grotius, lib. 3, chap. 21, sec. 5; 1 Kob. Rep. 181, the Mentor.)
" Kent and Wheaton cite Grotius as saying, in the section
referred to, that * where acts of hostility are committed after
peace is made, but not notified, the contracting parties are not
amenable in damage; but it is the duty of the government to
restore what has been captured but not destroyed.' It will be
found, however, on referring to the section, that Grotius states
merely that the parties ' will not be liable to punishment, but
must make good the damage;' and such seems to be the sound
authority on this point. (1 Wildman's Institutes, 159; 1 Kent's
Com. 169; 2 Wheaton, 291; Vattel, lib. 3, chap. 16.)
" It was further contended, that the rule as laid down by
Chitty was applicable to this case, that 'where a party, by his
own contract, absolutely engages to do an act, it is to be held
as his own fault and folly that he did not expressly provide
against contingencies, and exempt himself from responsibility
in certain events;' and that, ^ where a contract is general and
absolute, the performance is not excused by an inevitable acci-
dent, or other contingency, although not foreseen by or within
the control of the party.' (Chitty on Contracts, p. 735.)"
Hannen, agent and counsel for Great Britain, cited the JohUj
2 Dodson,336, where Sir William Scott held, in a suit brought
against the captor, that he was not liable except on notice, and
5627— VOL. 4 36
3796 INTERNATIONAL ARBITRATIONS.
intimated an opinion that, in case of loss of the vessel, the
government would not be liable. He cited, also, to the same
point, 1 Kent's Com. 159, and 2 Wheaton, 291; and Vattel,
lib. 3, chap. 16.
Upham, American commissioner, said that the John^ 2 Dod-
son, 336, and the Mentor, 1 Rob. 183 (also decided by Sir Will-
iam Scott), both sustained the point that, where there was
want of due diligence in advertising the cessation of hostilities
the injured party was clearly entitled to indemnification ; and
as it was at times difficult to determine what constituted due
diligence under the circumstances, it was usual to assign fixed
periods for the cessation of hostilities according to the situa-
tion and distance of places.^ The question therefore arose,
whether the assignment by the treaty of December 24, 1814,
of different periods, according to the situation and distance of
places, was not designed by the parties to establish the time
to be held as reasonable notice within such limits. Quoting,
then, the language of Article 11., as given above, he proceeded:
" These several periods were undoubtedly agreed upon as
equivalent to notice that peace existed within the prescribed
limits. It cannot be supposed that the contending parties
designed to append to these periods a further indefinite, un-
certain time, as to what should constitute due diligence in giv-
ing notice, or to restrain or limit the fact in its consequences,
that peace slwuld exist at the times named,
^^After the periods thus agreed upon, the obligation to cease
from hostilities was imperative.
" Such being the case, we have the true starting point from
which to consider the question of the respective rights of the
parties. It is manifest that collisions might then occur with-
out the imputation of any willful wron<;f in the violation of the
compact entered into. The injury, would, however, exist, and
the actual loss sustained should, on every principle of equity
and Justice, as well as of compact, be fully met.
" The stipulation was, therefore, entered into by the parties,
that < all vessels and effects ' that should be taken after the
several times specified * should be restored.' The question
then arises. What interpretation shall we place on this pro-
vision ? Does it mean that vessels and effects captured shall
be returned in specu., or that the identical property, merely,
shall be returned, and where this has become impracticable
that no restitution or satisfaction shall be hadf I can not be-
lieve that such was the intent of the parties.
'* They acknowledge themselves bound by a constructive
notice of the peace, and it was their own fault that they did
i Vattel, Book III. c. 16.
WAR CLAIMS. 3797
not take time euoagh, or did not use diligeuce enough, to give
acUuil notice of the peace ^ to their armies, sqnadrous, officers,
subjects, and citizens,' as was specially provided should be
done by the treaty.
"Under such circumstances the doctrine of Yattel, adopted
by Sir William Scott, applies, < that those who through their
own fault remain ignorant of the publication of the truce are
bound to repair any damage they may have caused contrary
to its tenor.'
"The party injured is in the same situation as a neutral
whose vessel has been seized and destroyed as the property of
a hostile power, where it is holden the neutral can only be
justified by a full restitution in value. (1 Wildmau, p. 175.)
"There is no measure of damage that justly meets the
requirements of the case. The treaty provides not only that
<all vessels,' but also Hheir effects,' which may be taken, after
a certain specified number of days, within certain described
limits, shall be restored on either side. But if the effects of a
vessel, consisting of provisions or other articles, are taken and
consumed, or are otherwise disposed of, so they can not be
restored specifically, it will hardly be contended that no
remuneration is to be made.
"If this be so, the rule would equally follow in relation to
the vessel. Restoration and restitution are synonymous. One
meaning of the word 'restore,^ as laid down by Webster, is ^to
make restitution or satisfaction for a thing taken by returning
something else, or something of different value,' and this is
the meaning which should be rightfully attached to the word
in the treaty.
"I do not understand that this is, in reality, denied ; but the
position is taken by Great Britain in this case that she is
relieved from restoring the vessel, for the reason that it was
subsequently cast away and lost by the act of God, and no one
is accountable.
"If the case can be brought within this principle the excuse
might avail, but there are circumstances connected with it
that preclude such defence. No one can plead the destruction
of property as the act of God, who is wrongfully in the use
and control of such property, lie is a wrongdoer from the
outset; he has converted the property from the instant of
possession, and the subsequent calamity which may happen,
however inevitable it may be, is no excuse for its loss.
"The John was in the rightful pursuit of a lawful voyage at
a time and i)lace when peace existed by the express stipula-
tions of the parties, after taking such period of notice as they
held that the case required.
"She had pursued her coarse northwardly some four or fiv^
hundred miles out from harbor on her way to her destined
port. She was there seized, placed under the charge of new
men, and her course was directly reversed, until she was taken
/
3798 INTERNATIONAL ARBITRATIONS,
back to the West Indies, and, through mismanagement or mis-
adventnre, was run on shore and lost.
'<It may have been the ordinary accident of the seas or may
not; but, in any event, she was taken there without right and
subjected to risks to which she was not legally and justly liable.
The plea that she was lost by the act of God is not, under such
circumstances, admissible. The vessel itself can not be re-
stored, but such comx>ensation and restitution should be made
as the nature of the case admits of.
<<In the argument, considerable stress has been laid on a
quotation in Kent and Wheaton, said to be founded on 6ro-
tins, that where collisions arise after peace exists, the govern-
ments ^ are not amenable in damages, but it is their duty to
restore what, has been captured, but not dentroyed? The cita-
tion from Grotius is, however, erroneous. He merely says, in
the section referred to, that if any acts be done in violation of
the truce before notice can be given, Hhe government will not
be liable to punishment, but the contracting parties will be
bound to mnke good the dnmage.^ (WhewelPs Grotius, liber 3,
chap. 21, sec. 5.)
" What shall be the precise effect, as a matter of notice,
where difierent periods of time are stipulated in which i>eace
shall take place, does not seem to have been fully considered
and settled. If it shall be held as an acknowledgment of no-
tice, then every subsequent act of violation of it is the act
of a wrongdoer, and full compensation follows of necessity.
<< I can see no possible mode of avoiding the justness or
soundness of the construction at which we have arrived, but
think it should prevail on every ground of public policy and
right interpretation of international compacts of this character.
" I am happy to say that my colleague, though he hesitates
somewhat as to the views presented, waives his objection to
the allowance of the claim, except on the score of interest,
and this question is to be submitted to the umpire.''
The umpire held that interest should be allowed, and it was
accordingly awarded. The whole amount awarded, principal
and interest, was $13,008.22.
CommisHiou under the couvcDtion between the United States and Great
Britain of February 8, 1853. (S. Kx. Doc. 103, 34 Cong. 1 seBs., 427-435.)
" Under the date of August the 3rd, 1871 , the
Zaooaitipan ciaimB: commissioners, not being able to agree, have
con uaon o e (^jp^^i-^^ ^.jjjg ^^g^ ^^ j^^, ].^j(j before the umpire,
Kexican war.
for his opinion * whether the Government of
Mexico is entitled to an award against the Government of the
United States; and, if yea, for how much!'
"The Government of Mexico in this case claims from the
United States an award of about two hundred thousand dol-
WAR CLAIMS. 3799
lars (iuclading the ioterest asked for) for the benefit of Ignacio
Torres, a Mexican citizen and inhabitant of the town of Zacaal-
tipan, in the State of Hidalgo. This town was attacked by
American troops on the 25th day of February 1848, waB sacked
and burned, and Torres sustained the great loss he complains
of as an injury done by the United States to a Mexican citi-
zen, after the 2nd day of February 1848, the day when the
treaty of Guadalupe Hidalgo was signed. His claim therefore
falls precisely within the conditions laid down in the conven-
tion on which our international commission is founded accord-
ing to the first paragraph of Article I. of said convention. It
is moreover argued on the part of Mexico that the assault on
Zacnaltipan was an outrage on the law of nations, inasmuch
as Zacnaltipan is an open and unfortified place, and peace be-
tween the belligerents had been concluded, though it had not
yet been ratified. The law of nations, it is urged, considers
peace to begin dejure with the day of its first signing, and not
with the ultimately perfected ratification. No retributive claim,
however, is made; nothing is demanded but payment for the
actual loss sustained by this breach of the law of nations,
together with the interest having accrued on the sum of the
original loss — $92,425.14 — during twenty-two years. This is a
plain statement of the Mexican presentation of the claim.
" I. As to the statement of the loss sustained by Torres,
handed in by him, it is inconsistent and weak in point of law.
Torres swears, and witnesses swear with him, that the confla-
gration which reduced Zacnaltipan to ashes consumed all his
books and mercantile papers, along with the merchandise be-
longing to Torres or stored in his house, and appurtenances,
and yet he makes a statement of the losses which he sustained
with suspicious detail. He gives seventy items of the most
minute kind, constituting the claim of $92,485.40, all, it appears,
from mere memory. Even if Ignatius Torres put down all the
items as they now appear on the paper handed in by him, the
moment after the confiagration had taken place, it must be
confessed that the exhibit of these seventy minute details is
one of the far greatest feats of memory recorded in the annals
of our kind. There are several witnesses who swear to every-
thing Torres has sworn to. Whether they have sworn to his
memory or from their own memory, transcendent like that of
Torres, does not appear; but what simply does appear is that
each of them swore to leading questions; and the civil law
§
3800 INTERNATIONAL ARBITRATIONS.
disconntenanceA suggestive qaestions as mach as the common
law disapproves of leading qaestions. At least this is the
case in those countries in which the civil law is the basis of
the legal fabric, and with which J am acquainted; and I most
suppose that it is so likewise in Mexico. The whole disap-
proval of leading or suggestive questions in the dififerent law
systems is dictated by morality and a simple sense of justice,
which can no longer be disregarded, whatever used to be done
in times happily past, in ecclesiastic and other courts.
<< n. The conflagration of Zacualtipan was not an act of
wanton lawlessness and pillage, but the effect of a military
engagement — a regular action — in which there must have been
protracted fighting, since there were a good many dead and
wounded. The enemy had collected in the town and had
erected some entrenchments. It was the very object of the
general commanding the American troops to capture, kill, and
disperse the Mexican troops or guerrilleros who had assembled
in the town. There was, therefore, no unlawfulness in attack-
ing the town, provided the time was lawful. The burning of
the town was a simple consequence of the action. 1 follow in
all this the official reports of the leading American officers
engaged in that action to their commander. We have no other
documents or information. They were drawn up more than
twenty years ago, when no one had an inkling that some day
they would come before, an international tribunal, and they
must be trusted as the regular and prescribed military reports
of the inferior to the superior of!icers. We have no better
source of information. But was the time when the American
troops attacked the Mexicans in Zacualtipan a lawful time for
hostilities? Had not the first signing of the treaty of peace
at Guadalupe, twenty-tliree days before, suspended all hos-
tility? And did not, after the second day of February, all fur-
ther acts of arms cease to be lawful public war and become pri-
vate crime and murder?
*^ These questions require careful answers and clear exposi-
tions. Hostilities frequently cease, but by no means always
when commissioners of the belligerents meet to treat about a
peace to be concluded. (See * Instructions for the government
of the armies of the United States in the field,' general orders
No. 100, 18G3, and the recent war between Germany and France.)
How is it, however, when a treaty of peace has been signed, but
has not yet been ratified? Many of the best authorities hold
WAR CLAIMS. 3801
that peace begins de jure when it is signed, and not from the
day when it is ratified by the two supreme belligerent powers
or the authorities which by the law of the land have alone the
right to ratify. This, however, is far from being unconditional.
If a peace were signed with a moral certainty of its ratification
and one of the belligerents were, after this, making grants of
land in a province which is to be ceded, before the final ratifi-
cation, it would certainly be considered by every honest jurist
a fraudulent and invalid transaction. But it is well understood
that a peace is not a complete peace until ratified; that, as a
matter of course, the ratifying authority has the power of re-
fusing unless, for that time, it has given up this power before-
hand, but there can be no doubt that so soon as peace has
been preliminarily signed active hostilities ought to cease, ac-
cording to the spirit of civilization and consistent with the very
idea and object of tlie whole transaction, which is to stop the
war and establish peace. It would be an unjustifiable act to
continue vehement hostilities under such circumstances as if
nothing had happened, wherever it is possible, and when the
contrary is not plainly understood or actually expressed.
<^Bcrt suspensions of hostilities, armistices, even the mere
mitigation of energetic hostilities, are no spontaneous acts,
like the efforts or suspension of activities of nature. Orders
to such effects must be given. No officer or soldier can act on
hearsay or rumor. No such order, however, it seems, was
given on either side immediately on the signing of the Treaty
of Guadalupe. On the contrary, that treaty contains the fol-
lowing passage:
"* Immediately upon the signature of this treaty a conven-
tion shall be entered into between a commissioner or commis-
sioners appointed by the general in chief of the forces of the
United States, and such as may be appointed by the Mexican
Government, to the end that a provisional suspension of hos-
tilities shall take place, and that in the places occupied by
said forces constitutional order may be reestablished as regards
the political, administrative, and judicial branches, so far as
this shall be permitted by the circumstances of military occu-
pation.'
"Commissioners are to be appointed, and on the 29th day of
February 1848 we find a ^military convention for the provi-
sional suspension of hostilities,' signed by American and Mexi-
can commissioners in the city of Mexico.
"The Treaty of Guadalupe was signed on February 2nd.
i
3802 INTERNATIONAL ARBITRATIONS.
"General Butler succeeded General Scott on February 19tb.
"Zacualtipau was taken and destroyed on February 25th.
"The ^military convention for the suspension of hostilities'
was signed on February 29th.
"And information obtained from the highest military au-
thority in the War Department at Washington shows that no
general order, having reference to the peculiar relation of the
two armies or the general state of war, was issued from the
American headquarters before March 6th. On that day was
published the order marked ^ Orders No. 18,' published by the
general commanding 'for the guidance of the army.' This
order is the result of the military convention, and the general
commanding the troops of the United States occupying Mexico
* directs the same to be strictly observed.' We cannot under
all these circumstances assume that complete peace was estab-
lished on February 2nd; that in consequence a complete and
plainly acknowledged armistice existed from that day forward,
and that a continuation or a renewal of hostilities was neces-
sarily out of the international limits of public war.
"lY. One of the ratifying authorities was far away. The
American Senate ratified the treaty as late as In May 1848.
It is certainly a noteworthy fact that while the Treaty of
Guadalupe was signed on the second day of February, it
contained a provision for the appointment of a military com-
mission, and a * military convention for the provisional suspen-
sion of hostilities,' or an armistice, was concluded between the
two contending armies on the 29th day of February ^for the
purpose of complying with the second article of the treaty of
peace, which was signed in the town of Guadalupe Hidalgo on
the second instant, as follows :' Then follows the quotation from
the treaty of Gnadalupe which I have given above. It has
appeared necessary to me to repeat certain facts. The armis-
tice, as it is seen, had not yet been carried out on the day when
a portion of Zacualtipan was destroyed four days before the
military convention was signed.
" V. It is admitted by the Mexican commissioner that abso-
lute necessity would give a right to resume hostilities even
after the signing of a treaty, and before its ratification (he
seems to be of opinion that the signature of a treaty makes it
dejure i)erfect in every respect). Even this point seems to be
in favor of the United States. I follow again the official
WAR CLAIMS. 3803
rei)orts of the American general. He says that guerrillas
assembled in or aboat Zacualtipan, endangering the Am'erican
trains of provisions, as they had been attacked by guerrillas
before. This gathering of troops was a hostile movement and
appeared dangerous to the Americans; they were obliged to
take care of their present and future provision trains. The
first necessity of armies is to have that which fills the stomach,
as it is also tbeir permanent great difficulty. There is a pas-
sage in the memoirs of the Marshal de Saxe, one of the great
soldiers of the last century, to this effect: Armies like snakes
move on their bellies. General Lane thought his provision
trains would be exposed to danger, and he attacked the enemy
in the town where they had assembled at a time when no dis-
tinct armstice had been concluded and in order to ward off
great danger. If there had existed an armistice at this par-
ticular time it would have been the Mexicans who broke it by
endangering the American trains.
"I can not see in the burning of the whole or a portion of
Zacualtipan, and along with it of the property of Torres, a
particular injury done by the United States of America to a
Mexican citizen, Ignacio Torres; but only a common calamity
of war — common, however bitter it may be; but what martial
inflictions are not bitter? Under all these circumstances and
in consideration of all these facts the umpire is constrained to
decide that he can award no damages to the Republic of Mex-
ico for the benefit of Ignacio Torres. The umpire wishes to
add, however, that since Torres had a full legal standing before
the commission, and since there are points in this case which
no doubt have presented difficulties to the commissioners, as
they have done to the umpire, the latter would be well pleased
if the commissioners would allow to Ignacio Torres a sum as
high as $1,000 for the expenses he has incurred in pursuing his
claims. My decision is that the claims of the Mexican Govern-
ment against the United States for the benefit of Ignacio
Torres be dismissed."
Lieber^ umpire, Ignacio Torres v. The United State*, No, 565, couvention
of July 4, 18()8, MS. Op. II. 83. The cominissioners did not allow the claim-
ant a gratuity for expenses, doubtless deeming themselves without author-
ity to do so. On the strength of the decision in Torres' Case the following
Zacualtipan claims were dismissed: Marcial Perez, No. 563; Francisco
AhregOf No. 847; Felipe Olivarea, No. 837; Mariano Guzman, No. 897; Celao
RuiZf No. 862; Francisco Cordoha, No. 564; Jesus RuiZf No. 848; Jesus
Etpindola, No. 875; The Corporation of the City of Zacualtipan, No. S76.
I
3804 INTERN A'nONAL ARBITRATIONS.
In the case of JosS Maria Anaya v. I%e
Cam of Anaya. United States, No. 52, MS. Op. YI. 12^, a claim
was made for the robbery of property by a
body of forty United States soldiers at the hacienda de Gnada-
lape, in Tlaxcala, Mexico, April 2, 1848. The commissioners
differing, the case was referred to the umpire. The umpire.
Sir Edward Thornton, observed that it was not shown ^'that
an officer was present, or that the planderers were ander the
control or command of an officer.'' Continuing, he said:
"If they were robbers on their own account the United
States Government can not certainly be held responsible for
the losses suffered by the claimant, who, however, might have
made a representation of the facts to the officer in command of
the detachment at Fort Frio, with a view to the punishment of
the offenders, and perhaps the recovery of his property. • • •
But, without admitting the fact, the umpire will suppose that
an officer was in command of the forty soldiers, and witnessed
and even ordered the spoliation of the claimant's property.
♦ • ♦ The umjnre thinks that he only is representing the
dictum of the best international writers upon the subject in
declaring that he considers that a treaty of peace is not com-
plete until all the necessary forms shall have been fulfilled, of
which the exchange of ratifications is the principal and final
form. It is then that the respective treaties, signed by the
sovereigns of the two nations, whether President, Emperor,
King, or whatever the title, are exchanged, and it is those sig-
natures, then exchanged, which give effect to the treaty. Upon
the negotiation of a treaty of peace it is customary to agree
upon a suspension of hostilities, and even without it the good
feeling of the belligerents would impress them with the expe-
diency of suspending hostilities; but the treaty itself, unless
it should expressly so declare it, does not necessarily and of
right involve a suspension of hostilities. The second article of
the treaty itself looks to a possible resumption of hostilities,
when it says, * to the end that a provisional suspension of hos-
tilities shall take place.' In the instance in question a conven-
tion of armistice was agreed upon, and it is upon a violation
of this only that any complaint could be founded by the claim-
ant. By this it was stipulated that there should be a suspen-
sion of hostilities, and it is laid down in the first article that the
infractors of this stipulation should be prosecuted and judged
by the laws of war. The Mexican commander in chief might
therefore have demanded the trial by a court of the officer who
authorized the robbery of the claimant's property, and the
Mexican Government might have gone so far as to denounce
the convention of armistice by renson of its violation by an
United States officer, might have renewed hostilities, and might
have refused to ratify the treaty of Guadalupe. But they did
nothing of the sort^ on the contrary, it is not shown that the
WAR CLAIMS. 3805
trial and panishment of the unknown offending officer was de-
manded, and the President of the Mexican Itopublic ratified
the treaty on the 30th of May, 1848. The ratifications were
exchanged on the same day, and the umpire considers that by
these final formalities all previous acts of the United States
military forces in Mexico were condoned and consigned to
oblivion.'^
Jo94 Maria Anaya y. The United SiaU9, No. 52, convention between the
United States and Mexico of July 4, 1868, MS. Op. VI. 122. This decision
was reaffirmed in Agapito Angaria v. The United States, No. 515, and Pragedee
Orihe Y. The United StateSj No. 525. In Dolores Carillo de Serrano, widow, v.
The United States, No. 119, MS. Op. VI. 64, the commissioners allowed a claim
for depredations committed by troops of the United States in eyaouating
Vera Craz in July 1848, after the ratification of the treaty of peace. They
awarded the yalne of the property with 6 per cent interest.
"In the case of Bernardo Bevilla v. The
Bevilla'g Caie. United StateSj No. 135, there seems to be no
donbt that the claimant is a citizen of the
Mexican Republic, and the umpire believes that he was so at
the time of the origin of the claim. He claims for the use of
his property by the forces of the United States under General
Sterling Price from the 20th of March till about the middle of
June 1848. The umpire is of opinion that the claim is well
founded. The convention of July 4, 1868, which established
the mixed commission, distinctly says that the claims which it
has to take into consideration are those 'which may have been
presented to either government for its interposition with the
other since the signature of the Treaty of Guadalupe Hidalgo,
between the United States and the Mexican Republic, of the
2nd of February 1848.' The date of the signature of the treaty
is distinctly laid down, and that of the exchange of the rati-
fications of the same treaty is not mentioned. The claim was
certainly submitted by the Mexican Government to the minis-
ter of the United States at Mexico to be transmitted to his
Government. In the opinion of the umpire the claim comes
under the 13th article of the convention for the suspension of
hostilities, signed on the 29th of February 1848. This con-
vention was an emanation of the second article of the Treaty of
Guadalupe Hidalgo, which provided for its negotiation. If
the treaty had not been ratified and the war had continued
the convention might also have fallen to the ground, and the
United States might not have been bound to its stipulations,
but the ratification of the treaty confirmed instead of annulling
the provisions of the convention as far as the interval between
r
3806 INTERNATIONAL ARBITRATIONS.
the signature and tbe ratification of the treaty was concerned.
That the claim shoald not have been presented before the
exchange of the ratifications of the treaty was perfectly
natnral; for until that event the date of the departure of the
occupying force could not have been decided, nor could it have
been known by the claimant whether the commander of the
United States forces would pay for the use of the claimant's
property or not.
*< By the thirteenth article of the convention for the suspension
of hostilities, it was stipulated that all supplies taken for the
American Army should be paid for at fair prices. The umpire
can not conceive that the use which a portion of the United
States Army made of the property of the claimant is not com-
prised in the above-mentioned stipulation and ought not to be
paid for by the United States Government. But the amount
claimed seems to the umpire to be exaggerated. The whole
claim for losses suffered by about three months' occupation is
$21,110, whilst the annual rent of the estate was $3,000. The
pasturage of a number of animals during those three months
is charged at about $7,400, whilst the loss of crops on account
of the presence of these animals is estimated at $4,500. It is
clear that if one of these is paid for the other ought not to be.
Taking into consideration all the circumstances of the case,
the use of the estate and of the house, of horses and mules
belonging to the claimant, the value of those which were not
restored, the damage done to the proi)erty, etc., the umpire
• * * awards that there be paid by the Government of the
United States, on account of the above-mentioned claim, the
sum of $8,000, Mexican gold, with an annual interest of 6 per
cent from the loth of June 1848 to the date of the final
award."
Thornton, umpire, June 29, 1875, Bernardo Revilla v. The United SUUee,
No. 135, convention of July 4, 1868, MS. Op. VI. 266.
"In the case of Turner and Renshau? v.
^^""^^w ""^ ^^^^('0, No. 143, the umpire considers that the
claimants were citizens of the United States.
The ground of the claim is that the claimants, who owned a
quantity of tobacco at Tampico and at Matamoras, imported
during the occupation of those posts by tbe United States
forces, were refused by the Mexican custom-house officers per-
mits or ^ guias' to take that tobacco into the interior of Mexico,
WAR CLAIMa 3807
and in consequence of that refusal were compelled to sell their
tobacco at those posts and thereby suffered great loss.
*< Before entering upon the merits of this claim the umpire
deems it necessary to express his views with regard to certain
parts of the Treaty of Guadalupe Hidalgo, and particularly
the 19th article of that treaty. The umpire considers that to-
bacco is certainly included in the ' merchandise, effects, and
property' mentioned in the 1st rule of the 19th article, which,
it is stated, ^ shall be exempt from confiscation, although the
imi>ortation of the same be prohibited by the Mexican tariff.'
Nothing could more clearly indicate that tobacco was one of
the articles contemplated. The 2d rule of the 19th article and
the 20th article appear to be null and void, for they depend
upon an eventuality which never arose. They supposed that
the custom-houses might be restored to the Mexican authori-
ties before the expiration of GO days irom the date of the sig-
nature of the treaty; but the sixty days had expired long be-
fore the restoration of the custom-house. Therefore the two
stipulations mentioned above had no effect. The 5th rule of
the 19th article agrees that if merchandise described in the
first and second rules should be removed to a place ' not occu-
pied at the time by the forces of the United States,' it should
pay the usual duties at that place, as if it had been imported
under the Mexican tariff. The tobacco of the claimants, if
permits had been granted, would have been removed to some
such place and would have had to pay duties.
"The 7th article of the armistice of March 9, 1848, has been
cited in opiM>sition to the claim. The umpire considers that
the negotiators of that armistice were in no way authorized to
stipulate anything which was contrary to the terms of the
treaty, as the last sentence of the 7th article of the armistice
certainly was, and after the treaty was ratified and the ratifi-
cations exchanged it could not possibly be overruled by the
conditions of the armistice.
"The umpire believes that the claimants, through their own
agents and through the United States consul at Tampico, asked
for permits to remove the tobacco to the interior and that they
were refused. He therefore considers that the claimants are
entitled to compensation for the loss they suffered, but it is
extremely difficult to estimate the amount of this loss. For the
claimants have not stated to what particular place in the inte-
rior they would have removed the tobacco if the permits had
3808 INTERNATIONAL ARBITRATIONS.
been granted them; there are, therefore, no data apon which
to estimate the cost of freight nor the amount of duties to be
paid at the place of destination. It does not appear that the
number of bales upon which loss was sustained was nearly so
great as that alleged by the claimants. It was sold at about
$13 the quintal. The witness, F. E. Oracesgui, testifies that
at the time of the evacuation of the Republic of Mexico the to-
bacco was worth and might have been sold in Monterey or
Saltiilo for $23 per quintal. The umpire believes that the
greater part of the difference would have been swallowed up by
fireight charges and duties at the place of destination, and
that these were the principal causes of the difference between
the prices at the ports and in the interior. After having made,
therefore, such a calculation as is possible under the circum-
stances, and which must to a certain extent be conjectural, the
umpire is of opinion that the claimants will be fairly compen-
sated for their losses on the sales of their tobacco at Tampico
and Matamoras and the expenses incurred by its detention at
those ports by the sum of $7,000, and taking the 1st of Sep-
tember 1848 as an equitable date from which to count the in-
terest, the umpire awards that there be paid by the Mexican
Government on account of the above-mentioned claim the sum
of $7,000, Mexican gold, with interest at 6 per cent per annum
trom the Ist of September 1848 to the date of the final award.''
Thornton, umpire, May 6, 1875, Turner if- Renshaw v. Mexico y No. 143, con-
vention of July 4, 1868. A similar case was dismissed by the umpire for
want of evidence of ownership of the tobacco and of the refusal of permits.
{John Varrott v. Mvxico, Noh. 103 and 104, MS. Op. IV. 588.) In the CMe
of the Heirs of Felix Maxan v. Mexico^ No. 182, Sir Edward Thornton made
an award in favor of tbe claimant on account of his being refused, in viola-
tion of the treaty of Ciuadalupe Hidalgo, permission by the Mexican authori-
ties to sell certain tobacco which he had imported into Mexico.
"When the troops of the United States en-
Beiden'g Case, tered Mexico in June, 1846, Samuel A. Belden,
one of the original claimants in this case, ac-
companied them as a sutler. It subsequently became impor-
tant for the sustenance of the army that business agencies
should be established in the territory occupied by it, and it
was thought advisable, for several reasons, that these agen-
cies should be conducted by private enterprise. The military
authorities having control of the occupied territory, in order to
facilitate the starting of such agencies, issued orders permit-
WAR CLAIMS. 3809
ting the introductiou of goods into Mexico, paying a dnty to
the United States of 30 per cent ad valorem. Mr. Belden^
auder these orders, opened, in connection with Mr. W. Ailing,
under the name of S. A. Belden & Co., a business house at
Matamoras, being a part of the occapied territory, and imported
large masses of goods into Matamoras, in accordance with the
terms of the orders above stated.
<< During the negotiations for peace which followed, the
claims of S. A. Belden & Co., and persons in a similar situation,
were taken into consideration by the representatives of the
United States, and by Article XIX. of the treaty of peace it
was provided that all merchandise imported into Mexico during
the military occupancy of the United States should be exempt
from confiscation and charge on sale. This treaty, it is to be
observed, was signed February 2, 1848, and was ratified and
exchanged May 30, 1848, but was not finally proclaimed until
July 4, 1848, and was, therefore, not of&cially published till
that date.
"In June 1848, during the occupancy by our troops of Mat-
amoras, a large quantity of tobacco was received in Matamoras
by a Mr. Kingsbury, the date of reception being therefore before
the proclamation of the treaty of peace and the date of the order
of the tobacco being long before the peace was negotiated. Of
this tobacco, three hundred bales were sold to Belden & Go.
and were by that firm (duties to the United States having
been paid by Kingsbury) forwarded to the interior for sale.
Peace having been proclaimed when these bales were still in
transit, they were not only confiscated by the Mexican Govern-
ment, but they were declared, in a process so summary that
time was not given to Mr. Belden to attend the hearings, to
have been smuggled. By the Mexican law a fine of double the
value of the goods is imposed on smuggling. This fine, to the
amount of $26,309.12, was imposed on Belden & Co., and to
enforce its payment writs were issued to seize the goods of the
members of the firm and to arrest their persons. Mr. Belden,
who represented the firm at Matamoras, was compelled to
leave the country; the goods of Belden & Co. at Matamoras
were seized, and not only were the goods on which duty had
been paid to the United States taken away from Mr. Belden,
but he was precluded from recovering the price of other goods
on which he also had paid duty, but which were sold by him
on credit.
3810 INTERNATIONAL ARBITRATIONS.
<<Mr. Beldeu having sabsequently soaght to obtain indem-
nity from Mexico through the agency of his own government^
on August 30, 1860, Mr. Webster, then Secretary of State, in-
structed Mr. Letcher, then United States minister to Mexico,
in reference to this claim, that —
<< ^ The allegations of the claimants seem to be well sustained
by the proof. • ♦ • If therefore you shall be satisfied that
they have ineffectually employed all the means for obtaining
redress which the Mexican laws offer, you will present the sub-
ject to the minister for foreign affairs with an application for
their relief
** On November 6, 1850, Mr. Letcher replied, stating that hav-
ing previously investigated the case, and having been con-
vinced that it was not only just, but well established by proof,
he had brought it to the notice of the Mexican minister of for-
eign affairs on tlie 29th of June of that year; but that noth-
ing had been done in the case by the minister.
" On May 29, 1852, Mr. Fillmore, then President, sent a
message to the Senate, inclosing, in answer to a resolution of
that body, certain papers and proofs bearing on the Belden
claim.
The Senate committee, on July 20, 1852, reported as follows:
"^ It would seem from the proofs adduced by the petitioners
that they were fully warranted in imi)orting said tobacco into
Mexico under the authority and by permission of the military
authorities of the United States in possession at the time, as
is above stated ; that after the peace the right so to have done
was recognized by the Mexican authorities, and proper permits
and protection under the provisions of the nineteenth article of
the treaty of Guadalupe Hidalgo; notwithstanding all which,
the tobacco was seized in the absence of its owners and con-
fiscated by a judicial decree ; and, in addition, a heavy fine was
imposed on them by the same tribunal, to pay which a large
stock of merchandise and other property belonging to the peti-
tioners was seized, and the whole terminated by an order for
their arrest and imprisonment.'
<*The committee closed their report with an expression of the
opinion that 'a most tlagrant violation of the treaty stipula-
tions referred to' had been committed, and added:
" ^But the committee regret that they can do no more than
express this opinion. The claim is against the Mexican Gov-
ernment, not against this ; and its prosecution is to be conducted
by the executive depurtment until a failure to procure proper
justice to be done (should such unfortunately be the result)
WAR CLAIMS. 3811
shoald devolve od Congress the duty of interi>osing against
any infraction of the treaty by one of the parties to it, and to
protect its citizens whose rights are secured thereby.'
'^To the same purport was another report of the same com-
mittee on August 3, 1854.
^^ Afterward, Mexico having failed to act, Congress was again
appealed to, and on February 10, 1855 (10 Stats. 847), passed
the following act:
^'^Be it enacted by the Senate and House of Representatives of
the United States of America in Congress asseinbled. That the
Secretary of the Treasury be, and he is hereby, authorized to
audit and settle an account of the duties paid by Samuel A.
Belden and Company to the officers of the United States
charged with their collection in the city of Matamoras, in the
Eepublic of Mexico, whilst that city was in the militaoy pos-
session of the United States, upon merchandise, except tobacco,
imported by them into Matamoras during that period, which,
after the restoration of peace between the two countries, they
were deprived of, either in the form in which imported, or in
the proceeds of sales, by illegal seizure, confiscation, seques-
tration, or their enforced abandonment of the same by the
judicial authorities of the Mexican Government, and pay the
amount thus ascertained to the said Samuel A. Belden and
Company out of any money in the Treasury not otherwise
appropriated, upon the execution by them of a proper and
legal assignment to the United States of all their right to the
amount so refunded when recovered from the Government of
Mexico.'
^* Mr. Guthrie, then Secretary of the Treasury, having ex-
amined the proofs in the case, assessed the amount of duties
ad valorem to be refunded to Belden & Company, on account
of duties paid by them on merchandise, except tobacco, at
$18,347.28, Thereupon Belden & Company executed and de-
livered to the Secretary of the Treasury the following docu-
ment:
" * Whereas it is provided by an act of Congress, approved
on the 10th of February A. D. 1855, entitled *An act for the
relief of Samuel A. Belden & Co.' [here follows the act above
quoted), and whereas the said Secretary of the Treasury,
through the proper accounting officers of the Treasury, has
audited and settled the said account of Samuel A. Belden
& Co., in part, to wit : For all that portion of said account in
which it is satisfactorily proved that tlie duties were paid by
said Belden & Co. to the officers of the United States charged
with their collection, • • • and has paid to the said
5627— VOL. 4 37
i
3812 INTERNATIONAL AEBITBATI0N8.
Samael A. Beldeu & Co. the amount so foaiid due them, viz,
the sum of eightoeu tliousaiid three hundred and forty-seven
dollars and twenty-eight cents:
"*Now, therefore, be it known that in the consideration of
the payment to us of said sum of eighteen thousand three hun-
dred and forty-seven dollars and twenty-eight cents, the receipt
whereof is hereby acknowledged, we hereby assign, transfer,
and set over to the United States all our right, title, claim,
and interests in and to said amount so refunded to us, so that
neither we, the said Samuel A. Beldeii & Co., nor our heirs,
assigns, or administrators shall claim or demand any part
thereof.
" ' In witness whereof we have hereto set our hands this
27th day of July A. D. 1855.
"^Samuel A. Beldbn & Co/
" The claim of Belden ^ Co. was submitted to the claims
commission, organized under the ccmvention of the 4th of July
18G8 between the Tuited States and Mexico, and the commis-
sioners having disagreed was decided by Dr. Lieber, the um-
pire, In favor of the claimants. Ui)on this decision the follow-
ing award was made by the commissioners :
'* * [Samuel A. lieldeu &, Co. vk. Mexico. No. 131 A. D.]
*' Wednesday, July 19, 1871.
'*<The umpire, Dr. Francis Lieber, having decided that
claimants in this case are entitled to an award, Mr. Commis-
sioner Wadswortli delivered the following order and award of
the commission:
'''This case having ])een decided by the umpire and his
opinion returned to the commissioners, and it appearing that
the claim liad been i)romptly presented to the Mexican Gov-
ernment by the minister of the Tnited States resident at
Mexico (Mr. Letcher) and subse(|uently by Mr. Conkling:
" ' It is now ordered and awarded that the Government of
the Rei)uhlic of iNIexico pay to the United States for and on
behalf of claimants, Samuel A. Belden «^c Co., for 299 bales of
tobacco, the sum of 813,154.r)(>, with interest from the 20th day
of October 1S49 at (> i)cr cent per annum, and the further
sum for goods seized and sold under execnticm and loss attend-
ing the same of J? 10,000, with interest from March 6 1850 in
the currencv of the United States, making a total to July 1
1871 of *r>;5,099.1i."').
"'But as the United States i)aid to said Belden & Co., on
the -7th of July 18rM, on account of tiieir sui)poscd losses the
sum of J?18,»'5t7.l!8, and took from them an assignment in wri^
ing of their said claim (now before us), which advance, with
interest after the rate allowed claimants, amounts now to the
WAR CLAIMS. 3813
total SQin of $35,920.81, nothing iu this award is to be con-
strued as preventing the United States from retaining oat
of the gross sum awarded herein as due that government on
said assignment the aforesaid sum of $35,920.81, paying to
Belden & Co. the balance, viz, $17,178.44.^"
Report of Mr. Bayard, Secretary of State, to the PreHident June 28
1886, S. Ex. Doc. 191, 49 Coug. 1 sess.; S. Rep. 1452, 49 Cong. 1 8688.
In the proceedings before the mixed commission, no record of the proceed-
ings in Mexico in which the tobacco waH condemned was produced either
by the claimant or by Mexico. Claimant swore that he had a search made
for them in Saltillo, but that they could not be found. He produced
depositions to the effect that they were irregular, and that Belden &, Co.
were not cited to hear judgment rendered against them prior to the issu-
ing of execution. The award of the umpire was very brief, and did not
discuss any matter of principle.
i:
I!'
CHAPTER LXVL
PRIZE OASES.
1. Probable Cause.
" Mr. Baynrd, memorialist, in behalf of James
c^oftiie''Ha^": ^. ^^^^ Messrs. Bethell & Crofter, of Phila-
Opinion of Kr. Gore. , , ^. , , , . , ,
(lelphia, states that the schooner with her
cargo^ bound from Port au Prince to Philadelphia, were cap-
tured on the 30th July A. 1). 1793 and sent into New Provi-
dence, and restored by the decree of the vice-admiralty court
25th March 1794 without allowance of costs and damage,
demurrage, or expenses; that the decree of the lords commis-
sioners of apx)cal, bearing date on the 27th February 1796,
affirmed the sentence of the vice admiralty; that the property
belongs to the claimants, who are citizens of the United States
of America; that the voyage was conformable to the law of
nations, and no act has been done whereby their right to costs
was forfeited.
"Mr. Gostling in answer states: ^That, amongst other cir-
cumstances appearing in evidence is the fact of x)apers being
thrown overboard, a fact incapable of any satisfactory expla-
nation, and inconsistent in its own nature with a claim of costs
and damages.'
"The ship's papers and those relating to the cargo were full,
complete, and general. They not only respected the voyage
to, but also that from, Philadelphia. The latter papers, with
the letters of the French merchants who loaded the schooner,
abundantly confirmed the evidence derived from the docu-
ments, which declared the property of vessel and cargo at the
time of capture. The depositions of the witnesses, viz, the
captain, supercargo, two of the sailors, and a French i)assen-
ger, corroborated the evidence of the papers. The fact of the
vessel and cargo being as claimed is still further confirmed by
the extraordinary means taken by the captors to prove it
3815
3816 INTERNATIONAL ARBITRATIONS.
French, and these means failing, for it is in proof that Oaptain
Moolden, the commander of the privateer who made the cai>-
tore^ offered one of the sailors of the yancy $250 if he would
swear there was French property on board.
"The captain of the Nanoy threw some papers overboard
which he received in Port an Prince to be pnt in the post-oflBce
in Phila<le]phia. He swears that the address on the letters
was in French, but, as he can not rea<l that language, he knows
not to whom they were directed, and it does not appear that
he or anyone on board knew the contents. The supercargo
gives the same a(*.count of throwing the letters overboard, and
says the reason for doing so was Hhat, as they were in French,
and he supposed the privateer had no linguist on board, they
might be the cause of his detention.' One of the witnesses, a
Scotch boy, swears that papers were floating in the sea; prob-
ably these were the same that the captain had thrown over-
board. Captain Moulden desired one of his officers to go in a
boat and x)ick them up, but he did not.
<'The only circumstan(5e that can raise a doubt in the present
case as to the claim of the memorialist is that of throwing
several letters overboard. In pursuan(;e of that good faith
required by the law of nations, the vessel is to be provided
with complete and genuine pai)ers, to discover whether the
property belongs to friend or enemy. The belligerent having
a right to the property of an enemy, though on board the ves-
sel of a neutral, the neutral is not justified in concealing or
destroying the evidence that shall so designate it. If he does
either, he interferes with the acknowledged right of the bellig-
erent. But if the neutral has on board his vessel complete and
genuine papers which speak clearly as to the property, he con-
ducts himself conformably to the law of nations, and as he
interferes with no right of the belligerent in destroying papers
that do not relate to vessel and cargo, I see no just reason why
he should be put to trouble and expense for such an act. It
impairs no rights of nor is inconsistent with any duties due
from him to the belligerent; yet there are cases where the
destruction of papers, though totally irrelevant to the vessel
and cargo, may justly lead to suspicions that the papers so
destroyed contained evidence of the property being enemy's,
or were of such a nature as to detract from the apparent weight
and authenticity of the remaining papers. In such a case, the
neutral is bound to remove that suspicion, and whatever loss or
PRIZE CASES. 3817
expense is necessarily incnrred in rendering tbe evidence free
from the cloud thrown thus upon it ought to be at the proper
charge of him whose conduct has raised the doubt. When-
ever suspicions, thus excited, are satisfactorily removed, any
further detention becomes unjust and an injury to the detained.
*^ It is doubtful, under all the circumstances of this transac-
tion and the means the captor had of possessing himself of
the papers thrown into the sea, whether the fact was not satis-
factorily explained at the time of the capture. However this
. may have been, there could remair no doubt after the prepar-
atory examination of the captain, supercargo, and crew under
oath. Their testimony was positive as to the property being
as declared in the pai)ers, and refuted every suspicion that
those destroyed had any relation to this vessel and Ccirgo. •
" I am therefore of o[>inion that the claimants are entitled
to compensation for the loss they have sustained by being
obliged to pay any costs either of their own or the captors
after the decree of the vice-admiralty court of the 13th Sep-
tember A. D. 1793, and also for all loss and damage which
they have sustained by reason of the detention of vessel and
cargo after that day.''
Gore, commiseioDor, case of the Xaneif, Florence, master, Article VII.
of the treaty between the United States and Great l^ritain of November
19, 1794.
*^ Bayard, memorialist, in behalf of Wm.
Case of the "SaUy," Pierce Johnson, Phillij) Johnson, Zebidia and
Choate: Opinion of j^jj^ j^^^^^ ^^^^^ ^ Ghoate, the master, states
Kr. Gore. ' '
that vessel and cargo were captured on the
24th November 1793 by the i)rivate ship of war Brilliant while
on a voyage from Boston to Amsterdam ; that vessel and cargo
were restored by decree of the hi^h court of admiralty, but
without allowance for costs, damages, demurrage, and expen-
ses; that on the 7th May 1790 the lords commissioners affirmed
the sentence of the admiralty, and further condemned the
claimants to pay the costs of appeal; that the voyage was
conformable to the laws of nations, and vessel and cargo be-
longed solely to the claimants, who are citizens of the United
States; that neither master nor owners had done any act
whereby their right to demurrage, costs, and expenses was
forfeited, and suggests as a reason for the decision of the lords
certain orders of His Brittanic Majesty authorizing the
capture.
3818 INTERNATIONAL ARBITRATIONS.
^^Gostling states iu answer: That there were no bills of lad-
ing on board, a defect, the more remarkable, as the letter of
instructions from the owners of the ship and part of the cargo
expressly referred to bills of lading; that the aooonnts of the
destination of the ship are contradictory; that, on a consid-
eration of those and other circumstances, the judge was of
opinion that a simple restitution was the whole of what was
due, and that the lords commissioners were of opinion that the
appeal of the claimant was vexatious and oppressive.
" It appears from the concurrent testimony of all the papers
found on board at the time of capture, the declaration of
the master and seamen, that the vessel and cargo were at
that time the property of the claimants, and that they were
citfzens of the UniteA States. All this was manifest from the
evidence shown to the captors on their coming aboard, and it
is not pretended that the voyage was not legal, whether to
Bordeaux or Amsterdam, or that anything excited suspicions
that the property was other than as declared, or that the
transaction was not honest and fair.
"The evidence of the articles of cargo and [of the. persons]
to whom it belonged consisted of papers denominated instruc-
tions and invoices, wherein the articles were not only particu-
larly specified, which is not ordinarily the case in a bill of
lading, but every material fact contained in a bill of lading
was also stated, viz, by whom and on whose account and risque
the goods were shipped, the freight to be paid for those which
did not belong to the owners of the ship, the place from and
to which they were bound, the person to whom consigned, and
the comi)ensation to be made to the captain.
"It is true that in the instructions from the owners of the
ship to the captain they say: * You having sundry goods and
merchandise as x)er invoice on our account and risque, as also
some freight, the whole consigned to you, you are to dispose of
the whole, taking your freight agreeable to bill of lading.'
The paper to which they refer had all the essential qualities of
a bill of lading, as the captain was the consignee, and espe-
cially contained the rate of freight, the object in which alone
they were interested and to which they referred. It afforded
all the evidences of property that are in a bill of lading in
common form; it contained every obligation on either of the
parties relative to this property, and, from a copy of the re-
ceipt signed by the captain on the back, it is evident that the
PRIZE CASES. 3819
8hipx)er8 retained one as their secnrity against him. From the
relation of the parties it necessarily included more than a bill
of lading generally does, inasmuch as the captain was the con*
signee, and it referred to a future voyage to be made with the
proceeds of these articles.
/^Surely there is nothing in these papers, or calling the last,
by the shipowners, a bill of lading, especially in the sense to
which they alluded, that could raise a suspicion to warrant the
capture or detention of this vessel and cargo.
"I know of no law of nations that renders it necessary to
the safety of neutral property that there be a bill of lading in the
vessel, either according as the terms are generally understood,
or according to the particular character of such a document in
any one nation. It is sufficient, in my opinion, if there be evi-
dence accompanying the cargo, which shows explicitly to
whom it belongs and so as to leave no just suspicion on the
mind of a belligerent whether it be the property of a friend or
enemy.
** In the celebrated reply of Lords Mansfield and others to
the Prussian memorial in 1756, < it is said the law of nations
requires good faith; therefore every ship must be provided
with complete and genuine papers, and the master at least
should be privy to the truth of the transaction. To enforce
these rules, if there be false or colorable pai)ers, if any be
thrown overboard, if the master and officers grossly prevaricate,
if proper ship's papers are not on board, or if the master and
crew can not say whether the ship or cargo be the property of
a friend or enemy, the law of nations allows, according to
different circumstances, etc., costs to be paid or not to be re-
ceived in case of acquittal.'
"Here is no particular specification of what papers are in-
dispensably necessary, but, in x)ursuance of that good faith
required by the law of nations, the papers shall be genuine
and complete, and the master shall be able to satisfy the bel-
ligerent whether the ship and cargo be the property of a friend
or enemy.
" The Government of France has always been uncommonly
rigid in requiring plenary and minute proof of property on
board ships in times of war. The edicts of Louis XIV. on this
subject have been extremely severe, and in many instances
unsupported by the law or practice of nations; but even these
do not extend so far as to require bills of lading and invoices.
f
3820 INTERNATIONAL ARBITRATIONa
The French ordonnance renders it necessary that there be on
board a charter party, bills of lading, or invoices. According
to Yalin's Commentary on this ordonnance, the words are to be
construed disjunctively and not collectively, and, if either be
on board indicating the property, it is suiUcient. What is not
declared in such papers shall be good prize, while all the rest
shall be released.
" I am of opinion that in the present case the papers on
board were genuine and completes both as to vessel and cargo;
that the capture was illegal and irregular, and that the claim-
ants are entitled to full compensation from the British Grovern-
ment for the loss and damage they have sustained by reason
of such capture."
Gore, commissioner, March 13, 1797, case of the Sally, Choate, master.
Article VII., treaty between the United States and Great Britain of
November 19, 1794.
" I am of opinion, 1st, that the claimants are
Caseof the"SaUy," entitled to the costs below, to damages, and
ifrPiL^e^"'"^ demurrage; 2nd, that they are entitled to the
costs of appeal and to be reimbursed such costs
as were adjudged against them to the captors.
" There was no i)robable cause of seizure or detention.
**The orders of the 6th November 1793, relied upon in the
respondent's printed ease, might have excused the captor in a
controversy between him and the claimants, but can have no
weight in a questicm between the claimants and the British
Government under the treaty. Tlie complaint is now to be
considered independent of those orders.
''According to Vattel credit should have been given to the
ship's papers produced by the neutral master at the time of
the capture unlesn any fraud apjyeared in them or there were
very good rea^07is for sfispertiuff their validity.
" 1st. The shi])'s papers upon the face of them bore no marks
of fraud and afforded no reason at all to justify a doubt of their
validity and fairness. The want of formal bills of lading could
not atl'ect their (Tcdit, as there were i)apers on board in sub-
stance equivalent to them.
"Invoices to which the master's acknowledgments were sub-
joined, stating explicitly for whose account the goods were
shipped and engaging to follow the sliij)per's instructions by
which they were accompanied, and to which they refer, an-
swered every object for which bills of lading are calculated.
^^The invoices, acknowledgments, and instructions taken
PRIZE CASES. 3821
together formed a body of clear and nneqaivoeal evidence of
the ownership of the cargo, its place of destinatiou, the i>er8on
to whom it was consigned, and the manner in which the pro-
ceeds were to be disposed of. Bills of lading coald not have
done more nor indeed so much, and, if in point of information
they could at most have been barely equal to those documents,
in point of law they could not in any respect lay claim to
8ui)erior eflficacy.
Indeed, as the whole cargo was consigned to the master on
board, the manner in which it was documented was better
suited to the nature of the transaction than bills of lading in
the customary form. An engagement on the part of the master
to deliver the cargo to himself ui>on his arrival in port could
hardly be so proper as an engagement to follow the instruc-
tions of the consignors either indorsed upon or accompanying
the invoiiics.
^< It is alleged in the printed case of the respondents that
there is in this respect an irrrcondlahle inconsistency between
the letter of instructions from the shipowners to the master
and the other i)a|)ers relative to the ('argo. It is true that this
letter does direct the master to take his freight for goods not
shipped on their account acconling to hills of lading^ but it is
so obvious that this was mere inaccurac^y that it ought not to be
mentioned as a rational ground of suspicion. The instructions
of those who shipped the goods on freight prove unanswerably
tliat there was no bill of lading signed for them, for they refer
to an invoice and to that only, which invoice, having the
master's acknowledgment and engagement as above stated
subjoined, together with the freighters' instructions therein
referred to indorsed^ was to every purpose of law or explicit-
ness equal to a bill of lading, and might well have been called
so by the shipowners (putting inadvertence out of the ques-
tion) without hazarding tlie credit of the ship's papers with
those who should be disposed to place upon them a just and
liberal construction.
"But surely if a bill of lading was purposely omitted with
dishonest views, the same views would have induced the ship-
owners to say nothing abcmt bills of lading in their instruc-
tions to the master which, doubtless, were not intended for
concealment. If bills of lading were actually signed, but
meant to be concealed from British or other cruisers for fraud-
ulent purposes, it was the perfection of stupidity to refer to
them in that very paper whi(*<h was sure to come under the
r
k
3822 INTERNATIONAL ARBITRATIONS.
inspectioii of those a;;rainst whom the fraud was meditated.
If it wiis designed to carry on a fraad by means of showing
false papers and concealing tme ones, what reason can be
imagined why the master should not have signed and taken
with him false bills of hiding as well as receive on board as
instruments of deception /a/«e and colorable invoices^ to which
he made liimself a party as effectually as he could be to bills
of lading? There can be no reason unless we suppose that
fraud consults form in what it intends to keep out of sights bat
negle<;ts it altogether in what it fabricates as the only means
of imi)osition ; that it is scrupulously technical when it is of no
use to be so, but is slovenly and negligent when its own object
pres(;nbes to it a nice attention to regularity and accuracy.
He who adopts such a supposition must reject all experience.
In short, this objection appears to be manifestly captious.
''It is furtlier objected by Mr. Gostling that the master's
prcttnice of the vessel's destination from Kochelle to Amster-
<lam is contradicted by the letter of instructions from the ship-
owners, etc. If we are to take tlie letter of instructions without
the postscript under the same date this allegation is true.
Hut why it is that we are to reject the postscript (which
expressly authorizes the destination to Amsterdam) it would
have been well for the object4)r to have explained.
"2d. If (as I hold to be most clear) the papers onboard
were free from any imputation u[)on the face of them, it is to
be consi<lered whether the ])reparatory examinations furnished
anything upon which to impeach them.
''The law of nations re<iuires that a belligerent making
])rize of a neutral in the teeth of i)roper written documents
shall have ivn/ r/ood reasons for his conduct. The reason in
this case (even admitting it to have been known to the captor
at the time of the seizure, which is not at all likely) was simply
that Anduze, a Frcinchnian, who happened to be, among others
of his countrymen, a passenger on l)oard the Sally firom
America to France, did not as the others did leave the ship at
Kochelle, but was proceeding in her to Amsterdam, That he
had no interest in or control over tlie cargo appeared from the
ship's papers, and if the captor made any inquiries on the sub-
ject (without which he could have known nothing of this
alleged probable cause) it must also have appeared from the
declarations of the master, mate, and Anduze.
" It was, however, possible that, notwithstanding these.
PBizB cASEa 3823
pai>er8 and declarations, Anduze might be interested in the ship
or cargo or both, and if the possibility of such an interest be a
very good reason for distrusting the papers, etc., then and then
only had the captor probable cause of seizure on this occasion.
But possibility is not probable cause. There must be an
apparently well founded presumption. The presumption here
relied upon was that Anduze would have landed at Bochelle,
if interest had not attached him to the ship; but this was
an arbitrary and fanciful presumption — a mere surmise rested
upon the selection of one motive out of many, all of them
equally, and sonie infinitely, more probable.
^^Anduze had for many years been an inhabitant of America
and the West Indies, and, of course, had been in no situation
to calculate with certainty how far a residence in France would
suit his views in life, his political opinions, or the part he
might have acted previous to his arrival. It was not practi-
cable for him even to ascertain whether he could be in safety
there during that turbulent era of the Eevolutiou. At Eochelle
he might be enabled to make this estimate more conclusively,
and the result may be supposed to have been a conviction
that it would be more prudent to go on to Holland. Eochelle,
too, was at that time in a state of much disturbance, as appears
by the proof, and this might have influenced him to prefer
proceeding with the vessel. In short, without enumerating
them, it must be evident that various causes, in no shape con-
nected with the Sally or her cargo, might have induced him to
reimbark, and as the fact was thus fairly attributable to so
many strong and probable reasons, consistent with the ship's
papers and the declarations of the captured, if the captor
would persist in carrying the vessel into port upon mere possi-
bility and surmise to the contrary, he did it at the peril of in-
demni/ying the neutral if his surmise should turn out to be
groundless.
<^ In taking Anduze to Amsterdam the neutral master was
doing a perfectly innocent act, and it would be strange if the
consequence of this innocent act should be to subject him to
the heavy loss he has incurred, although he had taken every
precaution to manifest the neutrality of ship and cargo which
could be supposed to be necessary. If such doctrine be accord-
ing to the law of nations, it will be impossible for a neutral to
provide for his security. Let his vessel and goods be documented
how they may, let his conduct be ever so unexceptionable,
3824 INTERNATIONAL ARBITRATIONS.
some solitary conjecture may always be conjured np ofi^inRt
him which shall be sufficient to ruin all his prospects and com-
pel him besides to sacrifice his time and money in an admiralty
contest by which everything is to be lost and nothing to be
gained. I, for one, think better of the law of nations, and I
am therefore of opinion that when Sir James Marriott pro-
nounced for restitution he should have granted to the claimants
costs, damages, and demurrage, unless he was restrained by
the orders of the Gth November 1793, which, however they
might have bound him, are no rule for us; and, further, that
as the claimants were obviously aggrieved by his refusal to
grant these costs, &c., and were compelled to carry their case
before the lords for redress, the exi)enses attending or conse-
quent uiK)n the appeal are due to them from the British
Government.''
Plnkney, comuiissioner, July 13, 1797, case of the Sally, Choate, master;
Articlo VII., treaty betweeii tho United States and Great Britain of No-
vember 19, 1797.
It having been decided that there was not probable cauBe for the seizure
discuBsed in the fore<^oiu<>^ opinion, the case was referred to the merchants
'Ho ascertain the compensation to be ])aid to the owners of the said vessel
by way of damages which the board has adjudged to be due to them from
the day of her capture to the time of her discharge, and also for the dam-
ages alleged to have been sustained by the said vessel while in the custody
of her captors, and also for such expenses as wtTe necessarily incurred by
the said owners by reason of the detention of the said vessel and her cargo
(not including costs), and also to ascertain the compensation to be paid
to tiie respective owners of the cargo, laden on board the said vessel, for
the detention thereof from the day of the capture to the time of the dis-
cliarge, and also to ascertain the compensation to be paid to the claimants
for the costs by tlnni iiu^nrred in the ])rosccution of their claim before the
admiralty and the lords of a])peal, and they are to make report of their
proceedings herein."
Tho records of the commission disclose further proceedings in the case
as follows:
** London, the thirteenth day of April one thousand seven hundred and
ninety-seven.
^' At a board of commissioners appointed and qualified and constituted
pursuant to the provisions of the seventh article of the treaty of amity,
commerce, and navigation, between His Britannic Majesty and the United
States of America.
*^ Present, .John Trumbull, esq'r, liftli commissioner.
** John \icholl, L. L. D., .John Anstey, esij'r, commissioners named on the
part of His Hritaunic Majesty.
** Christopher (Jore, es(|'r, William Pi n k ney, csq'r, commissioners on the
part of the said United States.
*^ Sally, Ebenczor ChoatC; master.
PRIZE CASE^ 3825
" In the oaso of the claim preferred by Samnel Bayard, esqnire, agent for
the United States of America, on behalf of William Pierce Johnson,
Phillip Johnson, Zebidia and Elias Hnnt, and the said Ebenezer Choate,
described in the memorial of the said Samuel Bayard as citizens of the
United States of America, stating —
** ' That on the twenty-fourth day of November, in the year of our Lord
one thousand seven hundred and ninety -three, and during the course of
the war in which His Britannic Majesty was engaged at the time of ex-
changing the ratitications of the said treaty the said ship and cargo were
illegally and irregularly captured by Louis Kousel, commander of the
private ship of war the Brilliantj while in the prosecution of a voyage
from Boston to Amsterdam, and that the said ship and cargo were pro-
ceeded against in the high court of admiralty, and by sentence of the
said court ordered to be returned to the claimants and owners, but with-
out any allowance for costs, damages, demurrage, and expenses, from
which sentence an appeal was prosecuted before the lords commissioners
of appeal, who, on the seventh day uf May, in the year of our Lord one
tliousand seven hundred and ninety-six, athrmed the said sentence and
further condemned the said clainiauts to pay the costs of appeal, from all
which the said claimants have sustained loss aud damage to the amount
of two thousand pounds sterling.
"'That the owner of the said vessel and cargo were at the time of the
capture and still continue to be citizens of the United States, and that the
said vessel at the time of the said capture was engaged in a fair and legal
trade, and that neither the owners nor master of the said vessel had done
any act that could operate as a forfeiture of their rights to costs, damages,
demurrage, and expenses arising from the capture aforesaid.
'''And therefore praying that, inasmuch as from the circumstances so as
aforesaid belonging to the said case of the said claimants they could not
at the time of exchangint^ the ratifications of the said treaty, nor at any
time since and can not now actually obtain adequate compensation for the
loss and damage so sustained ihs aforesaid in the ordinary course of justice,
and inasmuch as the said loss and damage have not been occasioned by the
manifest dehiy and uegli<^ence or willful omission of the said claimants,
the board would examine the justice and merits of the said case, and, pur-
suant t'O the provisions in that behalf made in the seventh article of the
said treaty, award full and complete compensation to the said claimants, to
be paid to them by the British Government under such releases and
assignments as by the said board should be directed/
" London, ISth day of Jpril 1797.
"The board having duly considered the said memorial, as also the writ-
ten objections of Nathaniel Gostling, esquire, the agent appointed by the
British Government on behalf of the Crown, together with all the deposi-
tions, proofs, and vouchers laid he lore the board in the course of the in-
vestigation by them made of all the circumstances in evidence upon the
merits of this claim, do decide ami award as follows, viz:
"That the complainants in the said memorial named, viz: William
Pierce Johnson, Phillip Johnson, Zebidia and Elias Hunt, and Kbenezer
Choate, are entitled under th(^ provisions of the seventh article of the said
treaty to have aud receive of the British Government full aud complete
f
3826 INTERNATIONAL ARBITRATIONS.
compensation for the losses and damages so by them alleged to have been
sustained as aforesaid, and the same having Been doly ascertained to
amount to the sum of one thousand one hundred and eighty-nine pounds
and eight pence three farthings sterling money of Great Britain.
"The board do adjudge and award, and it is hereby awarded accord-
ingly, that the said sum of one thousand one hundred and eighty-nine
pounds and eight pence three farthings be paid by the British Govern-
ment, actrording to the ]>rovisions of the said article, at His Majesty's
treasury on Saturday, the tirst day of July next, unto Samuel Bayard, the
memorialist and claimant, on behalf of the said complainants, William
Pierce Johnson, Phillip Johnson, Zebidia and Klias Hunt, and £benezer
Choate, or his assigns, to the sole use of the said William Pierce Johnson,
Phillip Johnson, Zebidia and Klias Hunt, and Ebenezer Choate, their
executors, !ulmiuistrators, or ^issigns.
"And the board do further award that the said Samuel Bayard or his
assigns shall at the time of receiving the said sum of one thousand one
hundred and (>ighty-niue pounds and eight pence three farthings at his
said Majesty's said otlice of treasury, actually sign and deliver to the per-
son making the said ]>ayment on behalf of the British Government an
acquittal and relejise in the form following, viz*:
" I, , agent of the United States , do hereby acknowl-
edge to have received of and from the British Government, for the nse of
William Pierce Johnson, Phillip Johnson, Zebidia and Elias Hont, and
Ebenezer Choate, of the State of Massachusetts, in the United States of
America, their executors and administrators, the sum of one thousand one
hundred and eighty-nine pounds eight pence three farthings sterling
money of Great Britain, in full satisfaction of the like sum mentioned in
an award made at Ivondou on the thirteenth day of April, in the year of
our Lord one thousand seven hundred and ninety-seven, in the case of the
ship Sally f Ebenezer Choate, master, by the board of commissioners ap-
pointed in pursuance of the treaty of amity, commerce, and navigation
between His Britannic Majesty and the United States of America, accord-
ing to the tenor of the said award and in full satisfaction of the captore
or condemnation in the haid award mentioned.
" London, 13th day of April 1797.
"We do hereby certify that the foregoing was the final decision and
award made at London this thirteenth day of April, in the year of onr
Lord one thousand sevm hiindnMl and ninety-seven, by a majority of us,
the coniniissiouers aforesaid in the said case of the Sally, Ebenezer Choate
master.
**In testimony whereof we have hereunto set our hands and seals at
London this thirteenth day of April, in the year of our Lord one thousand
seven hundred and ninety-seven.
'* J NO. Trumbull. [l.s.]
*^Jno. Nicholl. [L.8.]
"John Anstky. [l.s.]
"C. GORK. [L.8.]
"WM. PlNKXKY. [L.8.]
"At the same time the board prepared and executed a certificate of the
foregoing award for the purpose of bein;^ used by the memorialist in de-
manding at His Majesty's treasury the payment of the sum awarded.
PRIZE CASES. 3827
" Ordered,
'^ That whenever a certificate of an award shall be given to any person
entitled to receive the same, the secretary shall require from such person
to sign in the minutes of the proceedings of the day an acknowledgment
that he has received the same.
*' Ordered J
** That the secretary do apprize Mr. Long, or the Secretary of the Treas-
ury for the time heing, for the information of the lords commissioners of
His Majesty's treasury, of all sums awarded by the board to be paid by
the British Government, and also of the time when such sums are to be
paid."
Journal of the commission under Article VII. of the treaty between the
United States and Great Britain of November 19, 1794, MS8. Dept. of
State.
Memorial by Samuel Bayard, in behalf of
CftMof the ''Diana*'* i i
/w. . * ^ n^ ' Isaa<5 Clasoii and Gideon Gardner, owners of
Opinion of Mr. Gore. . , , . ,
said ship and cargo, states:
" That the brigantine and cargo were captured by the private
ships of war the Beaxdxen and the Agnes^ on a voyage from
Guadaloui)e to New York on the 2nd December 1793. Vessel,
etc., were carried into St. Christophers, and detained until 2nd
April 1704, when the same were ac(iuitted and ordered to be
restored as neutral i)roperty, damages and costs refused, and
the claimants ordered to pay costs to the captors. Both parties
appealed from this sentence. The claimants from that part
which disallowed them costs, etc., and ordered them to pay
costs to captors. The captors, from so much as ordered the
vessel and cargo to be restored. The captors took out no inhibi-
tion, nor proceeded in any wise to prosecute their appeal. The
claimants duly prosecuted the appeal made by them until the
captors were obliged to appear thereto, and the same was ready
to be set down for hearing; when their lordships decided
that from the Oth November 1793 until notice of an instruction
of His Britannic Majesty to commanders of war, etc., dated
tTany 8, 1794, captors were justified in seizing, prosecuting,
and bringing to judgment the vessels of neutrals, with their
cargoes consisting of the produce of the French colonies,
although at the time of the capture such captors were not
apprised of llis Majesty's order of the 6th November 1793, and
that even in cases where, i)ending the prosecution of such
vessels and cargo, such cai)tors had notice of said instruction
of January 8, and that ])ersons who brought forward aj)-
peals under such circumstanc^es should pay costs to the re-
spondents; whereupon the claimants found it necessary to
5G27— VOL. 4 38
3S28 INTERNATIONAL ARBITRATIONS.
aliandoii their api>eal. Mr. (Tostling, in answer, does not deny
the decision of the lords as asserted by Mr. Bayard, and on
which lie grounds his chiiin befort* the board and his aban-
donment of tlie appeal, but says the judgment of the court
l)eh)w was foun<led on the throwing overlx>ard some papers, and
suppressing others, and says some never were delivered up, of
which the captain does not attempt to exculpate himself; that
the excuse offered by the captain for throwing overboard
papi'rs was contradicted by the only witness regularly exam-
ine<l; that the claimants cannot be relieved for the not sub-
mitting all their paxiers without distinction to the insi)ection
of commissioned captors; that the withilrawing them on any
pretense whatever from such inspection will render the claim-
ants liable to costs; an<l that, if any relief was due, it ought
to have been pursued in the ordinary course of jndicial pro-
ceedings.
*'The jud^^e of the vice admiralty court does not mention the
grounds on which he founded his decree.
'^ There is no reason to believe, from any papers found on
board or any evidence respei^ting vessel and cargo, that they
were not hona fide the property of the clainmnts.
''The ca])tain, (rardner, swears expressly that there are no
])apers relative* to vessel and cargo in any country or on board
any vessel except such letters as he had written to his owner,
Clason. That no papers had been delivered out of his vessel
and cai ried away, except such as were received by the captors,
and three i)a[)ers delivered to a Mr. Bethly, which since that
delivery were handed in to court, and some others which be at
that time delivered in to the Judge of the said court* It ap-
pears likewise by his testimony, by the testimony of James
Holt, who stood at tin* helm all the time the brigantine was
chased by the i)rivateer, and by the testimony of Hezekiah
Jiarker, tin*, chief mate, that only three letters were thrown
overboard. That two of them were letters from French aristo-
crats, who liad desired Gardner to throw them overboard if
he was in danger of being captured, especially by a French
privateer; that the other was a letter from the master of a
vessel at Guaelaloupe to some person in New London and in
the custody of the mate. Tlie letters were all sealed and the
contents unknown to the captain, or any person on board, and
were thrown overboard while they were confident the priva-
teer that chased them was French, and known to them as be-
PRIZE CASE& 3829
longing to a person in Guadaloupe; that the letter directed to
New London was thrown overboard because the contents were
unknown. The mate swears that in his belief the letters would
not have been thrown into the sea if the captain had known
the privateer to have been English ; that their destruction was
merely to save the writers of them from trouble. These depo-
sitions appear to have been taken in precisely the same way,
under the same solemnities and by the same person as that of
James Cannery, with this only difference, that the depositions of
the captain, mate, and helmsman were taken in the presence of
the proctor in behalf of the captors, and that of Cannery with-
out the attendance of any proctor or other person in behalf of
the claimants; neither does it appear that the claimants were
notified of the taking his deposition. Cannery swears that
there were three or four packages and other letters brought
up and placed on the binnacle when the brigantine was chased;
that they were suffered to remain there until the privateer
had pulled down her French and hoisted her English colors.
After this he was ordered forward and on his return to the
deck did not see them. Afterward he heard the captain say
to the mate that he did not know where to hide the letters,
and the mate advised him to put them in some dirty old thing,
such as a piece of canvas or an old pair of trousers. This
deposition was dated the 27th December, Gardner's on the 6th
December, Barker's on the 21st, and Holt's on the 30th of the
same month. Gardner appeared to liave been examined again
by the captors on the 13th of February 1794. The mate. Barker,
swears that Cannery had deserted from the brigantine, and
entered on board a vessel of war belonging to His British
Majesty; that he had stolen certain articles from the captain,
which were found in his chest when he came to take it away,
and was compelled to give them to the owner.
"The knowledge that any letters were thrown overboard
appears to have come from the master's own account on his
first examination, and altho' all the evidence relating to the
destruction or concealment of pa])ers was known before the
tiling of the libel, which was on the 2nd January, that is
made no ground of charge against vessel and cargo; but the
case is rested chiefly upon the following grounds, viz: That
the property belonged^ to French subjects, or persons inhabit-
ing the territories of France; that the voyage was not allow-
able by the law of nations and upon the order of his British
3830 INTEKNATIONAL ARBITRATIONS.
Majesty of the Oth November 1793. There is uo objection
that the evidence relative to vessel and cargo was not clear
and plenary, or that such was withholdeii from the captors on
their boarding the bri^aiitine, or that any circumstance in the
papers, appearance of tlie vessel, or conduct of the persons on
board, aftbrded any suspicion of the property or destination
being other than declared by the captain. It does not appear
that any papers relative to vessel and cargo were concealed
or suppressed, but on the contrary it is expressly in proof that
every paper, except the three letters before mentioned, were
delivered into the hands of the captors or into court on or
before the Gth December. There is the strongest ground for
believing that the letters thrown overboard had not the small-
est relation to vessel and cargo, or voyage; and the reason given
at the same moment that the fact of destroying the letters
was known, and by the same person that communicated this
information, is natural and satisfactory. It is not then prob-
able that this circumstance could have intiuenced the capture,
bringing in or detention of the vessel, or the judge's decision.
The evidence relative to vessel and cargo was conclusive, and
arose from the ship's ])apers, the concurrent testimony of the
people on boaid, and confirmed by the depositions of others
who were in Guadaloupe when the cargo was purchased, and
in St. Kitts shortly after the arrival there of the Diana.
^'The destruction of papers, material in discovering the prop-
erty of vessel and car«;o to be enemy's, and with a view to pro-
tect the etl'ects of one belligerent from another, is an offence
against the law of nations and subjects the neutral so conduct-
ing to certain inconveniences. But, when the papers de-
stroyed are irrelevant to vessel and cargo, it does not offend
the rijj;hts of the belligerent to suppress or destroy them; and
if the rights of the belligerent are not im])aired and he put to
no inconvenience from such suppression or destruction there
is no reason in subjecting the neutral to loss and damage or
expense on this account.
**When writers on the law of nations speak of the forfeiture
of certain rights by the destruction or suppression of papers
they must certainly be understood as sjjeaking of papers which
relate to vessel and cargo and contain evi<lence interesting
from such their relation to the belligerent who makes the cap-
ture. Taking the words in an universal sense would subject
to such forfeiture for the destruction of a piece of blank paper,
PRIZE CASES. 3831
and by persons who had no interest or knowledge of vessel and
cargo. Papers that have no reference to either, or that do not
speak truths important to be known to the belligerent in
respect to these, must be considered in the same light as blank
papers. The destruction of such is innocent in the neutral as
respects the belligerent and by no means impairs that good
faith which he owes to the powers at war. He ought not to
suffer for doing an act innocent in itself and which in no
degree interferes with the rights of others. That the construc-
tion I have given of the rule which forbids the destruction of
papers is just, appears in an eminent degree from two ordi-
nances of France, one in 1708, the other in 1744, and exactly
similar, and the comment and instructions on the 1st by Louis
XIY. and the adoption of that construction as part of the other.
In the ordinance of 1708, it is declared that every vessel cap-
tured, whose papers shall have been thrown into the sea, shall
be a good prize with her cargo, upon the sole proof that some
papers were thrown into the sea, without any regard to what
the papers were, by whom they were thrown into the sea, nor
if there remained sufficient aboard to prove that the vessel and
cargo belonged to friends or allies. No terms could have been
more explicit or made the rule against the throwing papers
into the sea more absolute than these, whether reference is had
to the quality of the papers, the persons by whom destroyed,
their relation to the property, or the use to which they could
have been applied. Notwithstanding the language adopted,
which seemed not to leave the smallest discretion in the judge,
the literal expression operated so unjustly and was so contrary
to reason that the courts of admiralty had scruples whether
a literal construction could have been intended. On hearing
which Louis XIV., in 1710, wrote a letter to the president of
the council of prizes explanatory of the article, in which he
says, ' it was never my intention that this ordinance should
receive a literal construction, having always thought, on the
contrary, that confiscation ought only to be decreed on account
of papers which would have given some proof that the prop-
erty or destination was hostile. To remove these difficulties
and to leave you and the commissaries of the council of prizes
in their judgment all the liberty that I have always intended
to give you, I write you this letter to say to you that I remit
entirely to you and the commissaries to apply the rigor of this
ordinance or to interpret it according to the exigency of the
3832 INTERNATIONAL ARBITRATIONS.
case and the circamstances which shall havecfuised the throw-
ing the papers into the sea.' This letter has been ccmpled with
and considered part of both ordinances, notwithstanding that
of 1744 was so many years after the letter and conceived in
the same absolute terms. (2 Valin Commrs. 268.)
"After the decision of the lords communicated to the
appellant, there was no good reason for his prosecuting his
appeal in that court, and from this communication it was as
evident to him, and can not fail of being equally so to this
board, that he could not obtain compensation for the loss and
damage sustained by the capture in the ordinary course of
justice, as if he was i)ossessed of their decree against his
claim.
" I am therefore of opinion that the cause is properly before
the board and that the claimants are entitled to full and com-
plete compensation for the loss and damage which they have
sustained by the capture of their property which in my
opinion was irregular and illegal.''
Gore, commissioner, February 23, 1797, case of the Diana, Gardner,
master; Article VII., treaty between the United States and Great Britain
of November 19, 1794.
'• I am of opinion that the vessel and cargo
Case of the "Diana": ^y^re seized and carried into port without
pf^kn*"^ ° ^ probable jjround of suspicion that either ves-
sel or car^o were lawful prize, and that the
facts afterwards disclosed in regard to throwing papers over-
board, which were at the time of such disclosure proved to be
wholly immaterial, and to have been destroyed under appar-
ently well-found impressions that the privateer in chase was
French, did not furnish any sucli ground. I think of course that
the claimants are entitled to full and complete compensation
for tlie loss and damage occasioned by this capture, including
expenses and demurrage.''
Pinkiiey, coiiiniissioner, February 23, 1797, case of the Diana, Gardner,
master; Article VII., treaty between the United States and Great Britain
of November 19, 1797.
Case of the "Diana": " i'his is a claim for costs and damages
Opinion of Mr. Trum- merely, the neutrality of the vessel and prop-
bun, Fifth Commis- erty on board Ii«iving been decided by the
■*°'^®'- sentence of the vice admiralty court.
"Tlie point on which the a<j:ent of the crown rests his oppo-
sition to the memorial before us is, Mhat some papers had been
PRIZE CASES. 3833
thrown overboard, and others secreted and never delivered up.'
I do not find from examination of the papers that the latter
fact is established; and the question in my mind rest^ entirely
on the innocence or criminality of throwing overboard certain
papers under all the circumstances of the case.
** We are further told, however, that the irregularity of the
papers found on board, and particularly the want of invoices
and bills of lading, gave reason to suspect that the papers
thrown overboard were in fact such as (had they been suffered
to appear) would have proved the property to have belonged to
the enemy.
" It is true that no invoice or bill of lading of the cargo on
board at the time of seizure does appear in a copy certified to
be a true copy of all the papers and proceedings bad in the
case. Yet the copy before us contains full and complete inter-
nal evidence of its own imperfection, and that invoices and
bills of lading were found on board, and produced before the
vice-admiralty court in the case. For first we find in Fol. 22,
copy of the appraisement made at St. Ritt's on the 3rd March
1794, under order of the court, which runs thus :
"'Brig /)iawa valued at £800
***40 hhds. of sugar, cdst by French invoice £60 pr cwt. a 66
^"Do do do. do.
"And secondly, the decree of the judge, fol. 19, recites that
certain papers had been read in court, and among others * bill
of lading marked F, agreement with Fourneau and Toulanson,
together With the invoice of the cargo on board.' Now, altho
those papers do not appear among those submitted to us, yet
this recital in an office copy of the sentence, certified both by
the registrar and judge, under the seal of the court, must be
admitted as good evidence that such papers did exist, and
were produced in court: — by whatever error of the registrar it
may have happened tliat the ins(»rtion of copies of the papers
themselves has been omitted. The clearance from Guiulalou pe,
certificate of tlie payment of duties outward, and final settle-
ment with the treasurer of the island, respecting a protest of
Mr. Genist, all bearing date the MHh November, the day be-
fore the vessel sailed, api)ear to be perfectly fair and <j:enuine,
as were also all the ship's papers, and those relating to the
outward cargo. The claimant is tiierefore clearly to my mind
exonerated from the charge of probable cause of seizure said ^^
to arise from the absence or irregularity of necessary papers, ^^^
3834 INTERNATIONAL ARBITRATIONS.
and as it does not appear from anything before the board that
the captors, at the time they took possession of the brig, had
any knowledge that papers had been thrown overboard (no
mention being made of tliis circumstance in the libel, altho it
goes much into detail of the reasons for the capture), I am in
duced to believe that at the time of seizure there did not exist
in the knowledge of the captor any j)robable cause of suspicion,
which could justify the detention of the brig any longer than
was necessary for the examination of the papers on board; and
I am, therefore, of the opinion that the capture, was irregular
and illegal in the first instance. The knowledge that x)apers
had been thrown overboard appears to have been acquired on
the 6th of December, four days after the capture (and subse-
quent to the arrival of the vessel in the captor's port), from the
answer of Captain Gardner, to the 10th interrogatory: He de-
clares on oath, 'That three or four letters which he received
at Guadaloupe, with French addresses on them, one or two of
which he was desired to throw overboard, in case he was like
to be taken, but more particularly if by a French privateer,
were thrown overboard, while the privateer was in chase, and
while she chased under French colors.'
"The deposition of Henry Barker, the mate, confirms that
of the captain, and states that 'the papers thrown overboard
were three letters, two of which the captain informed him
{in the cabin, on the mornhuj after thei/ sailed and be/ore they
were chafed), were from French gentlemen aristocrats, who
had requested that they might be destroyed if he should be in
danger of being stopped by a French privateer; that the three
letters, viz, the two with French addresses above described
and one from the captain of an American vessel to some per-
son in New London, which had been committed to his care,
were brought upon deck by him, the mate, wrapped up by him
in a bit of sheet lead, laid by him upon the binnacle, and finally
thrown overboard by the captain, during the time that the pri-
vateer was in chase, while she chased under French national
colors, while he (after carefully viewing her with the glass)
believed her to be a French cruiser, and at least an hour before
she hoisted English colors and hailed in English.
"The deposition of James Holt, who was at the helm daring
the whole chase, and who from his consequent proximity to
the binnacle was better enabled to have seen and known cor-
rectly the facts of tying up and throwing overboard the papers,
PRIZE CASES. 3835
as well as their bulk and immber, than any other seaman on
board, confirms the testimony of the captain and mate, both
as to the number and size of the i)apers and the time of throw-
ing them overboard, particularly 'that it was done while the
privateer wiis in chase under French colors, and, to his best
recollection, an hour and a half before the privateer came up
and hailed in English under English colors.'
"James Cannery, one of the seamen on board the Diana^
differs from the three foregoing witnesses in several points, and
declares 'that there were three or four packages and other
letters tied up by the mate in sheet lead and lying on the bin-
nacle while the privateer was in chase; that they were lying
there at the time when the privateer hailed the brig in French
under Frencli colors; that she afterwards hoisted English colors
and hailed in Knglisli; that he was then orderwl forward on
duty by the cai)tain, and when he returned aft (which was not
long) does not know what became of them.'
'* It may be objected that Captain Gardner being interested
as owner of part of this cargo, his testimony ought to be re-
ceived with caution ; but Barker, the mate, and Holt do not
appear to have had any interest in vessel or cargo, and their
testimony, corroborating each other and that of the captain^
must unquestionably be allowed to outweigh the solitary dec-
laration of one man. I therefore regard the fact sufficiently
l)roved ^that three letters were thrown overboard by Captain
Oardnery during the time that the privateer wa^ in chase, while
she was under French national colors, and while she wa^ believed
by tJte captain and others on board the Diana to be a French
cruiser,''
" The question remains whether the law of nations be so
severe on this subject as that this act under these circum-
stances is sufficient according to justice and equity to dei)rive
the claimant of his right to costs and damages.
" It is said that the law of nations is absolute on this point,
and that the act of throwing overboard, or otherwise destroy-
ing, during the chase any pai)er on board (no matter by whom
the act was done or what was the nature of the paper) is in
itself sufficient to destroy the right of the neutral to any cost
or damage which may result Iroin his being seized and carried
into j)ort for legal examination.
''That this general rule is just I am ready to admit, but I
conceive that like all general mles it must have its exceptions.
3836 INTERNATIONAL ARBITRATIONS.
This board is expressly bound by its constitution and by oath to
give in all cases such awards as shall be consistent wltii equity
and justice, as well as with the law of nations; and if in any
case the latter shall appear to lead to such decisions as are
inconsistent with the former, it must so far yield of its severity
as to recover its consistency with them.
" I confess it does not clearly appear to my mind to be con-
sistent with these principles to admit the operation of the role
in all its extent in the case before us. It is easy to imagine a
case wliere collateral circumstances should throw so (dear a
light on the cause of the act, as well as the nature of the papers
destroyed, that the captain of a privateer, a prize master or
officer of common understanding, would cease to regard the
mere act as affording probable cause of suspicion, and where,
therefore, it could not be justifiable in equity to detain the
vessel for any further inquiry than what could be immediately
made on board by the captor; and the present appears to me
to have been very much of that description. In other cases
attendant circumstances may so increase the general suspicion
created by the act as to justify and render necessary the most
severe judicial investigation. But in all cases equity and jus-
tice demand that equal attention and respect be paid to the
rights of the neutral as to those of the belligerent bringing
him in.
" In the case before us the preparatory examination of the
captain was had on the 6th December, It then became known
that i)apers had been thrown overboard, and the declaration
of the fact was accompanied witli an explanation of the reason
as well as of the nature of the papers, which, if not perfectly
satisfactory while restin<i: on the single testimony of the cap-
tain, was at least such as made it the duty of the captor (feel-
ing, as he ought, a due respect and attention for the rights of
the neutral) to proceed without delay to a full investigation by
the examination of other persons on board. I also understand
it to be a rule of admiralty proceedings that *the captain and
other prmcqml oJfirerH of the captured vessel shall be exam-
ined in prejxfratorio.^ What was (lone here ? The captor, neg-
lecting equally the respect due to the laws of his own country
as to the rights of the neutral, examined no other person in
preparaiorio except .lames Cannery, a private seaman ; and that
not until the 20th of December, near a month after the captain.
The * other principal otiicers on board' were never examined in
PBIZE GASES. 3837
preparatario. At the request of the claimant the depositions
of the mate and the helmsman (the two persons whose testi-
laony was of most importance from the nature of their charac-
ter and situation on board) were admitted by the vice-admiralty
court, and are before ua and form the most material i>art of the
evidence.
^<It is to this criminal negligence on the part of the captors
that the losses sustained by the claimant and now about to be
borne by the British Government may be traced. For it ap-
pears firom the proceedings and final sentence of the vice-
admiralty court that the ship's papers of every kind were
complete and genuine, and the property of vessel and cargo
clearly neutral. It appears that the papers thrown overboard
had no relation to the cargo. That they were thrown over
while the privateer chased under French colours, and was be-
lieved by the captain and x>eople on board the Diana to be a
French cruiser; that they were thrown over from motives of
humanity, at the request of those who wrote them, and for the
purpose of guarding against the violence of party zeal; in fine
it appears manifestly that they were thrown overboard for the
purpose of concealing knowledge from a French cruiser, and
not from an English one. All this appeared in explanation of
.the tact at the time of its disclosure by the captain. No light
was ever thrown upon the subject, nor any examination made,
other than was manifestly in the power of the captor, on the
day the fact was disclosed; and no reason exists why this ex-
planation, which ultimately was satisfactory, must not have
been equally so on the Gtb of December as at any subsequent
day, if the cai)tor had then done his duty, by proceeding in
the examinations in preparatorio, according to the rules of
adnuralty proceedings and without delay.
^< I am therefore of opinion that the detention of this vessel
and cargo, iis well as the capture, was irregular and illegal;
and that the complainant is in equity and justice as well as
by the laws of nations entitled, under the provisions of the
7th article of the treaty under which we act, to receive from
the British Government full and adequate compensation for
the loss and damage which has been sustained in consequence
of such capture and detention.''
Trtimball, fifth ooininisHioner, April 12, 1797, oaso of the Diana, Gardner,
▲rtidle VII. treaty betweeu the United States and Great Britain of Novem-
ber 19, 1794.
3838 INTERNATIONAL ARBITRATIONS.
The British steamer Pet^rhoff was captnred
^*" "*' h^ffi"^***'" February 25, 1863, in the Atlantic Ocean, oflf
the ishiiul of St. Thomas, by the United States
steamer Vanderhilty and taken into the port of New York,
where both the Peterhoff and lier cargo were condemned as
prize. (Blatchford's Prize Cases, :i81 , 463-550.) The Supreme
Court on appeal reversed the decree of the district court,
except as to a small ])art of the cargo found to be contraband
and another part found to belong to the owners of the contra-
band. (5 Wallace, 28.) Subsequently claims against the-
United States on the part of the owners of the vessel and
cargo were presented to the commission under Article XII. of
the convention between the United States and Great Britain
of May 8, 1871.'.
The case for the claimants, as summarized by
* *^' ^^*^' J»^^*"^<>^* the British Government (Howard's
Report, 133), was as follows:
"On the 20th of February 18()3 while proceeding on her voy-
age and when about t^) enter the harbour of St. Thomas to
procure coals, the vi^ssel was stopi>ed by an armed vessel of the
I'nited States, an<l her papers carefully examined and passed
upon as correct. On the same day the vessel anchored in the
harbour of St. Thomas and there remained engaged in taking
in coal until the 25th of February. During the time of her
detention at St. Thomas there arrived there the Ignited States
steamer Massachusetts^ having on board Admiral Charles
Wilkes. At noon on said 25th day of February the Peterhoff
proceeded to sea, and while steaming slowly out of the harbour
of St. Thomas, met the United States steamer Vandei'bilt going
in. When the VandcrhUt arrived ott* the harbour mouth she
was observed to exchange signals with the admiral's ship. The
VandcrhUt then turned and followed the Peterhoff to sea, and
when both vessels were some four or tive miles from shore, but
within sight of the port, the capture was made. ♦ ♦ ♦
"After the capture, and while the proceedings in prize were
pending, the vessel was taken for the use of the United States,
' Tho steamer rcivrhoff: Speme iV I'leinin^, No. 405, rlaiinaiits for the
vessel: .James WetlnTeH, No. 4(H>: William Almond, No. 407; Alfred Wil-
son ami others, No. lOS; the same, No. 101^; .losenh S]>en<*e, No. 410; Alfred
LafoDe, No. 411: (.'harles S. Osborne and otliers. No. 412; Anna Louch, No.
413; Krederiek D. Frost and others, No. Ill; Tliomas P. Austin, No. 415;
James Hol^ate, No. IHI; .Jarman cV: .Smith. No. 417; Welch, Margetson &
Co., No. 422; Wilson *.V Armstrong, No. 42:1; <;rant, Hrodie & Co., No. 424;
Hine, Mundella cV Co., No. 425; Krnest I'Jlsworth, No. 426; John Ells-
worth, No. 4Ji8; Walter Easton, trustee, No. I3j»; Kohert Sinclair, No. 440;
Thomas Edgley ct Co., No. 441 — elaimants lor cargo.
PRIZE CASES. 3839
and the sum of 80,000 dollars paid into the registry of the court
as her appraised value. It was claimed that the proofs showed
that the vessel at the time of tbe capture and at the time she
was taken for the use of the United States was worth 128,000
dollars. That in April 18(13 the Secretary of the Navy of the
United States had consented to take tbe vessel for the use of
the Navy at her value, then estimated to be 110,000 dollars;
and tbat subsequently, in August 1803, tbe United States took
the vessel. By order of tbe district court an appraisement was
made by three persons, one representing the owners, one the
captors, and one the United States. Tbe estimate of the rep-
resentative of tbe owners was 120,000 dollars, the estimate of
the representative of the captors was 100,000 dollars, and the
estimate of the representative of tbe United States was 80,000
dollars. The United States took tbe vessel at the valuation
fb^ed by their own officer. Tbe cargo was sold under process
issued by the district court before tlie case was decided by the
Supreme Court. After tbe decision of tbe Supreme Court was
rendered, the district court, in tbe execution of the mandate^
and, as it was claimed, in violation of tbe directions tberein
contained, deducted from tbe proceeds of the restored cargo
the sum of 32,908 dol. 64 c. us costs and expenses, and 50,000
dollars as fees of counsel for tbe claimants.
"On behalf of all tbe claimants it was argued:
"I. Tbat tbe capture of the I'eterhofwskn illegal, because of
the fact disclosed by the evidence and distinctly stated in the
diplomatic correspondence, tbat tbe vessel was followed from
a neutral i>ort and captured witbiii sight ol a neutral port
which she had just left by a belligerent captor, who had made
use of tbe neutral port as a position from which to watch, fol-
low, and search neutral vessels. Tbe evidence made it unde-
niable, it was said, tbat Admiral Wilkes, wbo had previously
received what was known as ' tber black list' (a list of suspected
vessels, in which tbe reterlioff was named), was awaiting tbe
arrival of the vessel, and tbat tbe capture was effected through
communications made by a ])ublic vessel of the United States
Ijring in tbe harbour at St. Thomas; and tbat under the settled
docWnes of international law it is a violation of neutrality for
the armed vessel of a belligeieiit to use neutral waters for the
purpose of intercepting tbe nierebant vessels of the same or
another neutral state under suspicion of baving contraband
on board, or for any other purpose wbicb might make them
liable to tbe belligerent rigbt of search.
"II. Tbat tbe Peterhoff was a neutral vessel consigned to a
neutral port, there to enter into and become a part of tbe gen-
eral stock of merchandize, and tbat there was no ground for
just suspicion that she was intended to penetrate the blockade,
or that her cargo was destiiieil for belligerent use.
"III. Tbatthe conduct of tbecaptain and thealleged destruc-
tion of i>apers did not of tbeinselves constitute grounds for
capture or condemnation, and were satisfactorily explained.
/
3840 INTERNATIONAL ARBITRATIONS.
*'IV. That the articles ])ronouiiced contraband by the Su-
preme Court were really common and innocent articles of law-
ful commerce; and that, even if they were contraband, there
was not the least proof that they were intended for an enemy's
port or territory.
** V. That the capture being therefore unjustifiable, all the
claimants were entitled to costs and damages.
*' VI. That even if it were admitted that the decision of the
Supreme Court wafl justified by the proofs and by the law
applicable thereto, yet the owners of the vessel would be
justly entitled to an award for the difference between the actual
value of the vessel at the time of the capture and the sum
paid by the United States on the appraisement of its own
oilicer, and in the exercise of arbitrary power as to the amount
to be paid.
*' VI 1. That if it were admitted that the decision of the Su-
preme Court was justified by the jiroofs and by the law appli-
cable thereto, the owners of the restored cargo had a right to
complain that said decision was not carried into effect; that in
plain violation of its ]>r()vision8 they were improperly and ille-
gally compelled to pay a large sum of money as (^st 8, .expenses,
and counsel fees, and that in any as[)ect of the case they were
entitled to an award for the amount so paid out, with interest
thereon from the date of payment.
" Vlll. That as to the alleged failure of these owners to ap-
peal from the decree of the district court illegally imposing
said costs and expenses, they did not hear of said decxee until
the time within which an appeal could legally be taken had
expired."
The case on the part of the United States, as
Position^of^the United ,,^„,,„.^j.i^(.,| 5^. j^s agent (Hale's Report, 136),
was as foUoN^s:
"Pending the proceedings in the prize courts the vessel was
taken by the autlioritics of the United States for the use of
tlie (lOvcrnment, under the statute lor that purpose. ♦ ♦ ♦
The cargo was also sold by order of the district court, pending
the proceedings. On the remanding of the cause to the dis-
trict court, i)roofs wore there taken as to the portions of the
cargo condemned as contraband and its value, and as to other
portions of the cargo and their value belonging to the owners
of the (contraband cargo, as to tlu* costs of the captors charge-
able against the vessel, and as to the claimant's costs charge-
able against the ship, and the condemned and uncondemned
cargo, and these costs were duly api)ortioned accordingly. The
amount of the ap])raised value at which the ship had been
taken, less the costs charged against her, was paid over to her
owners. The proceeds of the uncondemned cargo were also
paid over to their res])cctivc owners, less the proportion of
claimant's costs against same, which costs were paid to the
PRIZE CASES. 3841
proctors of the respective claimants to whom they were by the
final decree allowed. No complaint appeared to have been
made in the district court as to the allowance or apportionment
of the costs and charges^ or in respect of the appraised value
at which the United States had taken the vessel; and no ques-
tion in respect of either of these matters was taken te the Su-
preme Court on appeal. By stipulation of the counsel for the
respective parties, all the papers relating to the appraisal and
taking of the vessel by the United States were omitted from
the apostles sent up to the Supreme Court on appeal. ♦ ♦ ♦
"The proofs showed that the Peterhoff sailed from London
for the mouth of the Kio Grande in January 1863, the bills of
lading of her cargo specifying the same as destined for Mata-
moras, and te be taken from alongside the sliip at the mouth
of the Bio Grande. Included in the cargo were some thirty- two
cases of artillery harness, a large quantity of boots, described
in the invoice as 'artillery boots,' * men's army bluchers,' ete.;
and eighty bales of blankets described in the invoice as * gov-
ernment regulation gray blankets.' Besides these portions,
which were held by the Supreme Court as belonging to the
class of articles 'manufactured and primarily and ordinarily
used for military purposes in time of war,' and so contraband
when destined to the use of a belligerent, the cargo included
large quantities of iron, steel, nails, leather, and drugs, includ-
ing 1,000 pounds of calomel, large amounts of morphine, 265
pounds of clilorofoiui, and :i,040 ounces of quinine, all goods in
special demand for the use of the Confederacy. Much of the
cargo was deliverable to order. A package deposited with the
captain by Mohl, one of the Texan passengers, and which the
captain testified he was told by Mohl contained ' white powder,'
but which the mate testified appeared to be a package of ' dis-
patehes,' was thrown overboard by order of the captain on the
boarding of the vessel by the captors. Other papers were at
the same time burned by the fireman by order of the captain.
The firm of James I. Bennett & Wake, London, were the agents
of the Peterhoff, and the cargo was mainly secured through
them. A circular of this firm was prove<l, dated 24th Novem-
ber 1862, in which they notified their 'friends desirous of ship-
ping to America' that they would dispatch a vessel to the Rio
Grande about 1st December; that the services of Mr. Kedgate,
Lloyd's agent, an exi)ert in cotton, who had been a resident
nearly forty years in Texas and Mexico, had been secured,
whose services would 'be of great value to shippers in respect
to his local knowledge and infiuence, as also as legards agency
of the inland transit and landing and shipping of goods and
cotton.' And further, that ^a Mr. Hesbie, of the Confederate
States of America, holds a contract with that government,
whereby he is to receive 100 |)er cent on invoice cost, payable
in cotton • * ♦ for any goods he may deliver into the Con
federate States,' the benefits of which contract he would share
to the extent of 50 per cent with any houses that might feej
3842 INTERNATIONAL ARBITRATIONS.
inclined to ship. The Mr. lledgate named in this circalar was
a i)a8senger on the Peterhoff at the time of her capture, and
was a claimant for part of the cargo and for damages by occa-
sion of his captnre and detention before the commission. The
Mr. Besbie, or Begbie, also named in the circular, joined the
ship at Plymouth, but 8ud<lenly left it at Falmouth. His name
was not inentioneu by the master in hisdei)Osition inprepara-
torio, who alluded to him merely as 'another passenger' who
*left at Falmouth.^ Neither of the firm of Bennett & Wake
was examined as a witness by the (claimants before the com-
mission, though notice was given of the examination of Ben-
nett, and proof was made that he was within reach in London
at the time of the taking of the testimony for the claimants
there, and the counsel appearing for the United States on the
examination demanded his pro<luction as a witness for the
claimants pursuant to the notice. Bennett & Wake had con-
tracted on the 27th October 18G2, with Pile, Spence & Co., the
owners of the Peterhoff, for the laying on of a first-chiss screw
steamer to proceed to tlie Kio (lran<le on freight; under which
contract the l*vUrht\f was dispatched, as named in the cir-
cular of Bennett «.S: Wake of 24th November 18G2, above re-
ferred to.
*'The counsel for the United States referred to and adopted
the opinion of the Supreme Court (5 Wall. 28) as part of his
argument. He maintained that the proofs before the prize
court, especially stren<ithcne<l as they were by the proofs taken
before the commission, lully sustaine<l the condemnation of the
portion of the cargo coiHJernned by the Supreme Court as con-
traband, and in fact sulliciently showed the pretended destina-
tion of the v<»sscl and cargo to Matamoras to be colorable. That
if all the proofs now ajjpcaring before the commission bad been
before th(» prize court they would have fully justified the con-
demnation of th<» vessel and tin* entire cargo. That in any
event the capture of the vessel an<l taking her into port was
justified by the presence of tin* contraband on board, which
was in fact liable to coiHlenination as well as by the circum-
stances of the case, fully (establishing probable cause. That the
evasions and falsehood of the master, »7annin, on his examina-
tion In prcparatorio and the spoliation of paj>ers shown of
themselves debarred the claimants from any award for costs or
damages. That as to the taking of the vessel by the United
States at an ai)praistMnent beh)w her alleged actual value, and
as to the alleged errors of th<* district court in the apportion-
ment ot claimants' costs upon that part of the cargo not con-
demned in captor's costs, those were matters as to which no
question was raised in the prize courts, and for which those
courts atlbrdcd an ample remedy if any injustice was done in
respect of th<»m to the claimants, or any of them, and that the
claimants could not be iieard here for the first time to question
the legality of tiie proceedings in those respects. That as to the
PRIZE CASES. 3843
apportioumeut of the claimants' costs, this appeared to have
been done not only without objection of the claimants in the
prize court, but on the application of their own proctors and
counsel. And as to the appraisement and taking by the United
States, everything in relation to these matters had been by
stipulation withdrawn from the consideration of the Sux)reme
Court, thus clearly implying the consent of the owners to the
taking at the valuation named."
The commission unanimously disallowed all the claims hay-
ing their origin in the capture of the Peterhoff.
2. Contraband.
Certain vessels were seized under an order
^'f *^, ,^« ^ ill council issued by the British Government
April, 1796. *^
in April 1795. The order was not published,
but, from the evidence in certain cases, it appeared to be
substantially the same, with perhaps some extension of the
list of articles subject to seizure, as the additional instruc-
tions of June 8, 1793, by which the commanders of His Ma-
jesty's ships of war and privateers were directed "to stop and
detain all vessels loaded wholly or in part with corn, flour, or
meal, bound to any port in France, or any port occupied by
the armies of France, and to send them to such ports as shall
be most convenient, in order that such corn, meal, or flour
may be purchased on behalf of His Majesty's government,
and the ships be released after such purchase, and after a due
allowance for freight, or that the masters of such ships, on
giving due security, to be approved by the court of admiralty,
be permitted to proceed to dispose of their cargoes of corn,
meal, or flour in the ports of any country in amity with His
Majesty."
Among tht* vessels captured under the or
^'•"^^^^^i'^^P* der of April 1795 was the Xeptune, which
was seized on a voyage from Charleston to
Bordeaux, whither she was bound partly laden with rice.
The vessel was brought by the captor to London, where i)ro-
ceedings were begun against her in the high court of ad-
miralty. By this tribunal the cargo was ordered to be sold
to the British Government and the proceeds paid into court;
and, on a claim duly preferred, restitution was decreed of the
cargo or its value, and of the ship, with freight, demurrage,
and expenses. The (piestion of the value of the cargo was then
duly referred to the registrar and merchants, before whom
5627— VOL. 4 39
f
3844 INTERNATIONAL ARBITRATIONS.
the claimant demanded what the cargo would have brought at
Bordeaux at the time it probably would have arrived there if
it had not been seized. The registrar and merchants, how-
ever, acting on the rule prescribed to them by the British
Government, allowed only the invoice ])rice, together with a
mercantile profit of 10 per cent. For compensation for the
loss occasioned by this allowance the claimant applied to the
board of commissioners under Article VII. of the Jay Treaty,
estimating his loss as the difi'erence between what he was
allowed and what would have been the net value of the cargo
at Bordeaux. This claim was resisted on the part of the
British Government on the ground that the capture was law-
ful, provisions being, under the circumstances of the case,
liable to be treated as contraband of war, at least to the extent
to which they were so treated in the order under which the
seizure was made; and that the British Government at any
rate had the right to seize provisions and preempt them under
the circumstances of the case. The board, by a majority vote,
held otherwise, and allowed the compensation demanded.
The opinions of the majority of the commissioners are given
below. Formal opinions by the minority were not filed. The
opinions discuss both questions, viz, (1) Under what circum-
stances provisions may bo treated as contraband; (2) Under
what circumstances may a nation claim a right of preemption
in respect of provisions.
•^^Mr. Gostliug says provisions are not gen-
Opinion of Mr. Gore, erally contraband, but under x>ossible circum-
stances they may become so. Both these i)osi-
tions are undoubtedly true. What these circumstances are
which render provisions contraband deserve inquiry.
'*A neutral has an uiKiuestionable right to carry on com-
merce with either of the parties at war, except in those things
which are contraband.
^* * Jure Gentium licere unicuique nierces portare ac vendere
ad quos voluerit.' (Grotius de 1. 13. «S: P. 3 L. 16. 5n.)
^* Whoever will derive to himself advantage by the exception
to a general rule, or by an interference with the generally
acknowledged rights of another, is bound to prove that his
case is completely within the exception.
^'Certain articles particularly necessary to war, and bound
to any port of the enemy's territory after the war is known to
exist, are contraband. All articles betioine so when bound to
a place besieged or blocktided, if the importation is attempted
PRIZE CASES. 3845
after it is known that the same is in a state of siege. He then
who claims goods as contrabaud in their own nature, or from
the peculiar situation of the place to which they are bound,
ought to show them to be of the quality or the place of their
destination to be in such a state as by the law of nations
entitled him to seize and appropriate them to his own use.
'<If cases exist other than these, and which, being within
the reason of the law, are also within its penalty, i t is the duty
of those who found a right on a parity of reason to describe
the circumstances in which they are similar, and whereby the
reason applies equally to such as to those in a state of siege
or blockade.
'<In the present case it is said that such circumstances of
distress did exist in France as rendered provisions, bound to
any port of that extensive country, contraband of war.
"The circumstances, then, ought at least to have been stated,
that those whose duty it is might examine and decide whether
there be any rule of the law of nations to justify the assertion.
"No circumstances or facts are mentioned on which we can
judge; and it is not on the vague assertions of either party
that any court can be expected to found its decisions.
"It is not pretended that all the coast of France was block-
aded, and there is strong evidence that no distress was expe-
rienced in that country very superior to what was felt in Great
Britain, inasmuch as the agent for the claimant offered security
that he would sell the property in England and indemnify the
government against them, provided he might be permitted to
disiwse of the cargo himself. The price, therefore, can not be
supposed to have been very different, and it is this which dis-
tinctly marks the degree of want and distress in both countries.
It is also in evidence that the great, if not sole, reason of the
government in issuing the orders which authorized this cap-
ture was to provide against an expected scarcity in England.
This is confirmed by many public documents, and also by cap-
tures under the orders, extending to vessels bound to ports in
alliance with His Majesty.
"The acknowledged right in a neutral generally to carry
provisions to the country of an enemy; the not proving, or
even stating, any peculiar circumstances which rendered this
case an exception to that right; the judgment of the admiralty
court, with the consent of His Majesty's officers, that the ves-
sel and cargo did belong as claimed and should be restored.
3846 INTERNATIONAL ARBITRATIONS.
with costs and damages, etc., the deposition of Mr. Mullet,
containing the information he received from the various officers
of the crown, incontestably conclude in favor of the assertion
of the memorialist Hhat the stoppage of this cargo was an
infringement of the rights of a neutral state,' and against that
of the agents of the British crown, Hhat this capture was
made under such circumstances of distress as rendered the act
lawful against the neutral.'
<< In those books on the law of nations, which I have had an
opportunity of examining I iind no cases mentioned wherein
provisions are contraband unless bound to a place besieged
or blockaded, if there are others, they must be such as where,
under similar circumstances, like relief is attempted to be
afforded to one party and equal injury to the other.
^^ In the present war a right has been assumed, as in the case
before the board, to stop provisions under circumstances where
no siege or blockade exists.
" The only authority that I have seen quoted in support of
such right is in 2d Vtittel, sec. 112, viz: < Commodities partic-
ularly used in war, and the importation of which to an enemy
is prohibited, are called contraband goods — such are arms,
military and naval stores, timber, and even provisions in cer-
tain junctures, where there are hopes of reducing the enemy
by famine'
" What these certain junctures are the writer does not say,
bat characterizes them by this description, ' where there are
hopes of reducing the enemy by famine.' What is the natural
import of these words? W^hat are those junctures wherein
hopes may be justly entertained of reducing an enemy by
famine?
'' The hope of reducing an enemy by famine can not exist
without supposing the immediate operation of a force capable
of attaining that end and of preventing relief.
**The reducing an enemy by famine is placing him in such a
state that he must either submit to the terms proposed or die
of hunger.
'^ These hopes may be entertained in certain cases where
you can besiege or blockade a place. To constitute a siege or
blockade the place must be surrounded. It must also be inca-
pable of providing within itself the nijeans of subsistence to
support the hopes of reducing it by famine. When, therefore,
we reflect on the force necessary to form a perfect siege or
PRIZE CASES. 3847
blockade, and that there must also exist a disparity between
its capacity to produce subsistence and the numbers to be sup-
ported to justify such hopes, it is evident that these can be
entertained only in respect to some small tract of territory or
island.
"There can hardly be imagined such a juncture, in the
affairs of a great nation consisting of more than twenty
millions of people, and extended over a large tract of territory,
that would raise hopes of reducing it to such an unconditional
surrender as is supposed in the case of famine, viz, a reduc-
tion to such terms as the conqueror may choose to impose.
" The supplies of provisions, furnished to such a nation from
foreign countries, must, in the nature of things, be so trifling,
compared to their actual consumption, as to be of no important
consequence to the nation who receives or to that which inter-
cepts them.
"It is hardly within possibility that the admission or pre-
vention of all provisions from other countiies could of itself
prevent or effect a famine.
" If the ii^ea could ever be seriously entertained of surround-
ing such a country as France, and the inhabitants be supposed
in such a state as in absolute danger of perishing by famine. Is
it not infinitely more probable that, impelled by hunger, such
a body of people would break through all the feeble restraints
that could be imposed upon them and find their way into a
country of plenty, rather than submit ^unconditionally to the
terms of the besiegers!
"To avoid perishing by famine, an enemy surreiiders, and
is relieved from that evil.
"If a nation, populous as the one mentioned, be in such a
state, it may well be doubted if any effectual relief could be
obtained by a surrender, for a little reflection on the immense
quantity of food necessary for the support of so many people
will convince any man that it could not be easily spared from
the rest of the world, or, if it could, that there would be no
means of transporting it to them in season to prevent their
destruction.
" If all supplies could be prevented from without to such an
extended country, fertile in its soil and varied in its climate,
and capable in ordinary times of raising a sufficiency of pro-
visions for the support of all its inhabitants and a surplus for
exportation, hopes could not be derived from thence of reduc-
ing that nation by famine. There may be a scarcity of certain
/
3848 INTERNATIONAL ARBITRATIONS.
articles of provisions in such a country that may be incon-
venient, but it is hardly possible there should be a famine in
the conunon acceptance of the term — that is, such a scarcity
of all food as to produce death generally among the people.
'^ Such a nation has within itself all the means of subsistence.
Suppose that by misfortune or neglect to cultivate the land not
more than threec^uarters of their usual quantity of provisions
is obtained. An economy in the expenditure of this quantity
will suffice for the support of life without hazard of starving.
Yet no one will believe that it is possible for any part of the
worUl to supply this deficiency.
" When, therefore, we consider the impracticability of guard-
ing and surrounding a territory extensive like that of France,
so as to prevent the importation of provisions; that the quan-
tity of foreign supply can in no case be material to prevent
famine; that such a nation does not depend on others for sus-
tenance, but has within itself all the means of subsistence, and
can supply any deficiency in their ordinary quantity of food,
by economy in their expenditure, more eft'ectually than from
any foreign aid, we may safely conclude that the junctures, in
which hopes are entertained of reducing an enemy by famine,
can not bo predicated of such a natron, and that therefore the
seizure of provisions, bound generally to their ports, not in a
state of siege or blockade, can not be justified on the before-
cited pas8a«i:e of Vattel.
*' This appears to me the natural construction of the words of
this author, taken distinctly and by themselves. By referring
to other parts of his treatise, and to other eminent writers on
the law of nations, this interpretation will be confirmed, and
it will be evident that provisions are not contraband, except
m case of bein^ bound to a ])lace besieged or blockaded.
'' Vattel, in the one hundred and seventeenth section, speaks
of the punishment that King Demetrius infiicted upon the
master and ])ilot of a vessel carrying provisions to Athens
when he had almost reduced that city by famine. Athens was
at that time closely besieged.
^'This case then marks the Juncture when provisions become
contraband, and delines those grounds of hope of reducing the
enemy by famine, the existence of which is necessary to justify
their seizure. As this author mentions no other case where
the hopes of reduction by famine render ])rovisions contraband,
we must ccmstrue this indelinite declaration by the example
which he afterwards gives, and espocially when he makes use
PRIZE CASES. 3849
of nearly the same expressions in both sections to describe
that situation of an enemy which renders it just to prohibit
the importation of provisions.
"Zouch quotes the instance of Demetrius to support a doc-
trine expressed in terms of like extent with those of Vattel:
*' ' Hue spectat quod Demetrius cum Atticam teneretexercita,
Athenis famem facturus gubernatorem cum nave f rumen turn
inferre parantem cepit; et Garthaginienses Komanosqui hosti-
bus commeatum attulerunt, ceperunt eosdem vero repetentibns
reddiderunt. Distingnendum censet Grotius de rebus quae
deferuntur quarum aliae in bello multum usum habent, ut
quae voluptati inserviunt, quod genus querelam non habet;
alia in bello tantuni usum habent, ut arma quae qui hostibus
subministrant in hostium partibus habentur ; alia sunt quae in
bello vel extra bellum usum habent, ut pecunia, commeatus,
naves, quas etiam, si earum subvectio deditiouem, quae expec-
tatur impedire poterit intercipere licebit.' (De Judicio inter
Gentes, Pars. 2, sect. 8.)
*' By all rules of sound construction it is prohibited to extend
a principle beyond what the circumstances of the case from
which it is deduced will fairly warrant. It will be seen also
hereafter that Grotius, whose language he adopts, instead of
extending the case wherein provisions are contraband beyond
those of siege and blockade limits them within a narrower
comx)ass.
" Bynkershoek makes use of expressions of greater latitude
in treating generally on this subject, viz : * Excepta sape et
cibaria, ([uando ab amicis nostris obsidione premuntur hostes^
aut alias fame laborant. Optimo Jure interdictum est, ne quid
eorum hostibus subniinistremus, quia his rebus nos ipsi quo-
dammodo videremur amicis nostris bellum facere.' (Quest.
I. P. 1 B. page 70.)
"Yet in the eleventh chapter he gives his opinion in the
most explicit manner that provisions may be carried to all
places, even to camps, if not besieged.
'' In this last cited chapter he adduces many arguments to
prove that camps as well as cities may be surrounded and
besieged and ports blockaded by fleets, from whence he con-
cludes that provisions bound to ports and armies thus situated
become contraband. The words, then, alias fame laborant^
which are more latitudiuary than those of Vattel, can be con-
strued to exteinl only to eases where provisions are bound to
places blockaded by fleets and to camps besieged.
3850 INTERNATIONAL ARBITRATIONS.
^^A eoDStraction that should embrace cases other than these
would be totally irreconcilable with what the author afterwards
declares in the most positive language, for, on much considera-
tion of the subject, and of several ordinances of Spain and
Holland, prohibiting the imi>ortation of provisions into eaeh
other s territory, he x)roves them to have been unjustly made
in the heat of war, or in retaliation for such as were so made,
and that the ordinances, so far as they prohibit provisions, can
only be considered just when the place to which they are bonnd
is besieged, for on that ^tate alone, says he, does their jnstioe
depend. (I Lib. 11 chap. p. 87.)
'^This intelligent writer examines very particularly the doc-
trine that attempts to include among contraband of war pro-
visions and other things which are of use both in peace and
war, under circumstances other than those of siege or block-
ade, and, after considering the arguments in favor of it, ex-
plodes the principle as dangerous and unjust, and contrary to
the law and custom of nations. His conirluding remarks are
in the following words, viz: ^ In tertio genere distinguit Gro-
tius, et permittit res promiscui usus intercipere sed in casu
necessitatis, si aliter nie, meaque tueri non possim, et quidem
sub onere restitutionis, veruni ut alia x)raeteream, quis arbiter
erit ejus necessitatis, nam facilimum est cam praetexere. An
ipse ego qui intercipi? Sic puto, ei sedet, sed in causa mea me
sedere jiidicem onines leges, oinnia<iue Jura prohibent, nisi
quod usus tyrannornm omnium prineeps admittat, ubi foedera
inter principes explicanda sunt. Nee etiam i)otui animadver-
tere mores Gentium ham* Grotii distinctionem probasse, magis
probarunt, quod deinde ait. neque obsessis licere res promiscui
usus advertere, sic enim alteri prodessini in necem alterius.'
(Q. I. P. 10 chap., page 7G.)
'' lie afterwards, in chap. 11, says: 'Ex ratione communi, et
Gentium usu Urbibus obsessis nihil (juicquam licet advertere
ut alia occasioue supra dicebani, id ipsum quoque dixit Grotius
de Jure B. et P. improbat enim sa])vertionem, si Juris niei
exsecutionem reruni subvertio inipedierit, idque scire potueret
qui advexit, ut si oppiduni obsessum tenebam si ])ortos clauses,
et jam deditio, aut Pax exspectabatur: Sola obsidio in causa
est cui nihil obsessis subvertere lieeat, sive eontrabandum sit
sive non sit nam obsessi non tantuni vi coguntur ad dedi-
tionem, sed et fame, et alia aliarum rerum penuria.'
PRIZE CASES. 3851
"We see here, according to Grotias, provisions were not
contraband going to a place besieged, unless peace or a sar-
render was expected from the siege, and that quickly; and his
commentator, Barbeyrac, agrees with Coccejus in opinion, that
a neuter may carry provisions to one of two enemies who is
besieged and pressed by tlie other, provided he does not do it
with a design to deliver him from this grievous extremity, and
that he is also ready to sell the same provisions to the other
enemy; the state of neutrality and the freedom of commerce,
he remarks, take from the besieging all cause of complaint.
Although this opinion of Grotius is very justly combatted by
Bynkershoek as inconsistent with the law of nations, yet it
serves to show that, in the judgment of the writer himself, the
terms made use of, in giving a general description of the cases
in which provisions may be seized, instead of being extended
beyond the case of siege or blockade, are confined within nar-
rower limits than even those of mere siege or blockade — for he
requires not only that the place should be besieged, but that,
in addition thereto, peace or surrender be soon expected to
take place.
"And although the opinions of Barbeyrac and Coccejus are
not allowed to be conformable to tlie law and usage of nations,
yet they are of importance to show that the general and indefi-
nite expressions of Grotius on this subject can not be construed
to embrace cases other than those of siege or blockade.
" The description of cases by Vattel, wherein provisions
belonging to a neuter may be seized, is ' ineertiiin junctures,
where there are hopes of reducing the enemy by famine.'
"That by Grotius (leaving out the terms that relate to siege,
and thus render it definite), where peace or surrender is soon
expected.
" It is therefore highly probable that the words of the former
are adapted from the latter in his general description, and if
so they are selected for the i)urpose of confining the right of
the belligeient within a narrow circle rather than extending
it beyond the cases of siege or blockade. They are, however,
certainly of no greater latitude than those of Grotius, and by
no means so indefinite as those of Bynkershoek, viz: * Quando
ab amicis nobis obsidione i)remuntur hostes, aiit alias fame
laboranV Yet, as we have the construction of these celebrated
men of their own language, wherein tliey expressly confine
3852 . INTERNATIONAL ARBITRATIONS.
their meaning to cases of siege or blockade, and as Yattel
does not suggest any alteration in the law of nations on this
subject and quotes no other case than that of a close and per-
fect siege to show what is the usage of nations as to the seizure
of neutral property, it follows conclusively that the construc-
tion 1 have given of this passage is confirmed by himself as
well as by those other eminent writers on public law.
'^Valin in his Commentiiries on the Ordinances of Louis
X IV. examines in what cases provisions are contraband. The
following quotation will show his opinion on this subject.
Speaking of the prohibition to carry articles contraband of
war to the country of an enemy, he says: * Et tel a^tede tout
temps les droit des gens relatif i\ la guerre. Loccenius de
jure maritimo^ ^tend mr*me la prohibition aux vivres et muni-
tions de bouche, de meme que Particle 5 du reglement du Roi
de Dannemark, en date du 5 avril 1710: mais par nos loix et
le droit commun, elle n'a lieu en cette partie que par rapport
aux places assiegees ou bloquees;' and afterwards he says:
'Ces objets exceptes' (referring to contrabands in their own
nature) Mes siijets des puissances amies ou neutres peuvent
douc commercer librement avec nos ennemis, leur porter leurs
denn'^es et marchandises, et prendre en echange ou paiement
des eft'ets du pays ennemi.' (3 L. 9 tit. 11 art. p. 264, 5.)
"Mr. Gostling says the law of nations warrants the seizure
of goods as contraband in certain cases, for the purpose of
compulsory preemption.
'^ (roods are contraband from some fault in the person send-
ing them ; a knowledge of war, in the case of articles necessary
to war, or of tlie siege or blockade, in that of other articles, is
requisite to render them liable to capture.
"It is, however, probable that he grounds himself on the
words of (irotius before cpioted, in the distinction which he
makes of thedifterent sorts of goods, and the rights which he
attributes to a belligerent from his own necessities. In my
opinion the answer given to this by Bynkershoek is-conclusive
against such doctrine; although, if Grotius himself is exam-
ined as to the necessity which should exist to support a right
of seizure, it will be very clear that this case is not within the
necessity there prescribed :
"'Nam si tueri me nou possum iiisiipiae mittunturintercip*
iam, necessitas, ut alibi exi)osuinius, Jus dabit, sed sub onere
restitutionis, nisi causa alia accedat.' [W L. 1 G. 5 S.)
PRIZE CASES. 3853
'< The necessity here spoken of is a necessity on the part of
the captor. Articles can never be deemed contraband merely
because the belligerent who seizes is in want of them.
" This comes not within any description of contraband that
I have ever seen. Grotius explains himself as to the neces-
sity here intended by referring to the 6th sec. of the 2d chap.
2d book. It is a necessity which may take place in peace as
well as war. It mast be, says he, a necessity so absolute as
to absolve a man from all human laws that regard the rights
of property, as in case of one man at .sea having reserved in
store a quantity of provisions when there was great scarcity;
here necessity admits of a distribution in common among the
rest; or, in case of lire, to pull down my neighbour's house, if
I have no other means of preserving mine. In the 7th sec.
he says precautions are to be used lest this liberty derived from
necessity should go too far; < first, that all i>ossible means
should be used by which such a necessity may be avoided, by
entreating the owner to supply us with what we stand in need
of,' &c.
" In case of war necessity may justify a belligerent, as he
states in the tenth section of the same chapter, in possessing
himself of any fort in a neutral country, provided there be not
an imaginary but a certain danger of the enemy getting it
into his hands, and of his being thereby capable of doing irrep-
arable injuries. The necessity must be absolute, continues he,
because whatever does but deviate the least from necessity is
injustice.
"There is no pretense that there existed any such state of
things in Great J^rituin at the time of this capture, or of issuing
the orders which authorized it, as would justify the seizure of
provisions belonging to neutrals on the ground of a necessity
thus defined by Grotius.
" By the authorities which I have quoted, and these are con-
firmed by liutherforth and Lee, it is manifest that provisions
are not contraband, except in cases where they are bound to
places besieged or blockaded ; and that the seizure of them is
not justifiable by the law or usage of nations in any other cases.
I have seen no writers ou public law that give the least color
to the opposite doctrine except Heiueccius, on the Law of Na-
ture and Nations, by TurnbuU (2 book, 9 chap. 201 sec), who
cites Grotius, L. 3 0. 17, sec. 3, and Bynkershoek, Quaest. Jur.
P. cap. 9, and sec. 9, in support of his assertions; and whoever
0
3854 INTERNATIONAL ARBITRATIONS.
will take the trouble to turn to the passages quoted will find
that tliey have not the smallest relation to the subject, or are
directly repugnant to the purpose for which they are adduced.
" The limitation of Grotius, in rendering it necessary to the
seizure of provisions, in case of siege or blockade, that peace
or surrender should be speedily expected, has been very justly
exploded, not so much on account of its unreasonableness, as
on account of its uncertainty, and the endless disputes which
I)lacing a right on such vague grounds would certainly engen-
der between the nations at war and those at peace. The
extending a right to seize the i)roperty of neutrals in cases
other than those of siege or blockade is liable to the same
objections in much greater degree.
*'In one case there is a public and obvious fact, by which
the neutral and belligerent may know and determine their re-
spective rights. In the other there is nothing to which the
neutral can refer to ascertain whether the trade is lawful or
otherwise, or, in case of dispute, to which both parties can ap-
I)eal for settling the question. Happily for mankind, ia this
eventful age, in which surely there is no reason for multiplying
the occasions of dis])ute and the pretenses or causes of war,
this point does not remain unsettled. If it did, the foregoing
reflection would be sufficient to refute a doctrine which would
provide the certain means of extending the war of two peoples
to all the mercantile nations on earth.
"Mr. Gostling has chosen to remark that the eighteenth
article of the subsisting treaty expressly recognizes a right in
the belligerent to stoi) provisions under the circumstances of
the present case.
'•It is hardly possible to believe that this article of the
treaty has ever been read by those who adduce it in support
of such a doctrine. The words are:
"'Whenever any such articles (referring to provisions and
other articles not generally contraband), so becoming contra-
band according to the exinting luiv of nationSj shall for that
reason be seized, the same shall not be confiscated, but the
owners thereof shall be speedily and completely indemnified.'
"The article grants to the belligerent no new rights. It does
not extend the list of contraband in the smallest degree, nor
does it make any new cases wherein articles not generally con-
traband shall become so. By the jnst and unavoidable con-
struction of these words it in^pairs the rights of the belligerents
PRIZE CASES. 3855
and grauts to the neutral a benefit not before enjoyed. It re-
strains the former from confiscating articles in certain cases
where by law they are contraband, and assures to the latter
complete indemnification for their seizure in cases where by
law a forfeiture is incurred.
^<If goods are contraband by the existing law of nations
the belligerent has a right to seize them, but no right derives
from the treaty. If they are not so contraband^ there exists
no right to seize them. It appears incontestably that under
the circumstances of this case the cargo was not contraband
according to the existing law of nations. It follows, then, oo(n-
dusively that the belligerent had no right to make this seizure
by virtue of any doctrine recognized in this treaty. Whenee
a different conclusion could have been drawn it is not possible
for me to conceive.
<<The United States have constantly resisted, by all the
means in their power, a doctrine that attempted to embrace
within the list of contraband provisions in cases other than
those of siege or blockade. And in my judgment this clause
was introduced in the article merely to avoid disputes which
often arise as to the fact of blockade — that is, whether or not
the place was so invested as in construction of law amounts
to a blockade.
<<And althouji^h Great Britain has issued orders at different
periods during the war to seize provisions belonging to neu-
trals if bound to ports of France, though not in a state of
blockade, yet she has always engaged to pay for the same.
If the circumstances under which they were seized rendered
them contraband, she was under no obligation to make any
compensation for the seizure.
"If by the law of nations they were justly seizable as con-
traband, the condemnation of them would have been equally
just and would have followed of course. Her engaging then
to make payment atlbrds strong proof that the right was not
perfectly clear even to those who ado])ted the practice.
"On the supposition that a necessity existed on the part of
Great Britain which justified the capture and detention of this
cargo, a question arises ^ What obligations the laws of justice
and of nations imposed on the belligerent!' The answer will
be found in the same author who speaks of the necessity, and
is in the followinj^ words, viz: * It may seem needless for us to
treat of tbose that are not engaged in the war, when it is
i
3856 INTERNATIONAL ARBITRATIONS.
maDifcHt the right of war can not affect them ; bat because,
upon occasion of war, many things are put upon them on pre-
tense, it may be proper here, first, briefly to repeat, what we
have mentioned before, that the necessity must be really
extreme to give any right to another's goods; second, that it
should be requisite that there should not be the like necessity
in the owner; third, when absolute necessity urges us to take,
we should then take no more than it requires. That is, if the
bare securing of it be enough, we ought not to make use of it,
and, if we can not help abusing it, we ought to return the full
value of it."^ (3 Grotius, 17 chap. 1 sec.)
Gore, commissioner, Juno 30, 1797, case of the Neptune; Article VII.,
treaty between the United States and Great Britain of November 19, 1794.
"The majority of the board were for apply-
^^^ ing the rule adopted in the case of the Betsey,
Furlong, i. e., ' the net value of the cargo at its
port of destination at such time as the vessel would probably
have arrived there.'
"One of the British commissioners objected to the applica-
tion of that rule, not only upon the general grounds mentioned
in his written opinion in the case of the Betsey, Furlong, which
I have elsewhere fully considered, but upon grounds peculiar
to cases arising under the provision order of 1795.
"The objections peculiar to this class of cases were chiefly
founded upon the following positions:
"1st. That the order of council was made when there was
a prospect of reducing or bringing the enemy to terms by
famine, and that in such a state of things provisions bound to
the ports of the enemy became so far contraband as to justify
Great Britain in seizing them upon the terms of paying there-
for the invoice price with a reasonable mercantile profit thereon,
together with the freight, demurrage, etc.
"2d. That the order of council was justified hy necessity, the
British nation being at that time threatened with a scarcity of
those articles directed to be seized.
"The first of these positions has been rested, not only upon
the general laws of nations, but upon the eighteenth article of
the treaty between Great Britain and America.
"The evidence of this supi)osed law of nations is principally
the following loose passage of Vattel: ^Commodities particu-
harly used in war, and the importation of which to an enemy
is prohibited, and called contraband goods. Such are military
PRIZE CASES. 3857
and naval stores, timber, horses, and even provisions in certain
junctures when there are hopes of reducing the enemy by famine J
(Vattel, B. 3, ch. 7, sec". 112.)
''It might be sufficient to say, in answer to this authority,
that it is at best equivocal and indefinite, as it does not desig-
nate what the junctures are in which it shall be allowable to
hold 'that there are hopes of reducing the enemy by famine;'
that it is entirely consistent with it to affirm that these hopes
must be built upon an obvious and palpable chance of effect-
ing the enemy's reduction by this obnoxious mode of warfare,
and that no such chance is by the law of nations admitted to
exist except in certain defined cases, such as the actual siege,
blockade, or investiture of particular places. This answer,
satisfactory enough in itself, would be rendered still more so
by comparing what is contained in the foregoing quotations
with the more precise opinions of other respectable writers on
the law of nations, by which we might be enabled to discover
that which Yattel does not in this quotation profess to explain —
the combination of circumstances to which his principle is
applicable or intended by him to be applied.
"But there is no necessity for relying wholly on this answer,
since Vattel will himself furnish us with a pretty accurate
commentary on the vague text he has given us.
" The only instance put by this writer which comes within
the range of his general principle is that which he, as well as
Grotius, has taken from Plutarch. Demetrius (as Grotius
expresses it) held Attica by the sword. He had taken the
adjoining towns of Eleusiue and Ehamnus, designing a famine
in Athens, and had almost accomplished his design, when a
vessel loaded with provisions attempted to relieve the city.
Vattel speaks of this as a case in which the provisions were
contraband (sec. 117) ; and although he does not make use of this
example for the declared purpose of rendering more specific
the passage above cited, yet as he mentions none other to
which it can relate, it is strong evidence to show that he did
not mean to carry the doctrine of special contraband further
than the example will warrant.
'' It is also to be observed that in section 113 he states ex-
pressly that all contraband goods (including, of course, those
becoming so by reason of the junctures of which he has been
speaking at the end of section 112) are to be confiscated. But
nobody pretends, and it would be monstrous to pretend, that
3858 INTERNATIONAL ARBITRATIONS.
Great Britain coald rightfully have confiscated the cargoes
taken under the order of 1795. And yet if the seizures made
under the virtue of that order fell within Vatt^l's opinion, the
confiscation of the cargoes seized would have been justifiable
according to the same opinion.
^'It has long been settled that all contraband goods are
subject to forfeiture by the law of nations, whether they are
iso in their own nature or become so by existing circumstances;
and even in early times, when this rule was not so well estab-
lished, we find that those nations which sought an exemption
from forfeiture never claimed it ui)on grounds peculiar to any
description of contraband, but upon general reasons embracing
all cases of contraband whatsoever.
'*As it is admitted, then, not only by the order itself but by
the agent of the crown and every member of this board, that
the cargoes in question were not subject to forfeiture as con-
traband, it is manifest that the juncture which gave birth to
that order is admitted not to have been such a one as Vattel
had in view, or, in other words, that the cargoes did not
become contraband at all, within the true meaning of his
principle or within any principle known to the general law of
nations.
*^ In confirmation of the above observations upon Vattel, it
may not be unimportant to add that Zouch,^ who speaks upon
this subject almost in the very words used by Vattel in the
foregoing quotations, illustrates and fixes the extent of his
general doctrine by the case of the investment of Athens by
Demetrius.
'*I have understood it to be supposed that Grotius also
countenances the position I am now arguing against.
"lie divides goods into three classes, the first of which he
declares to be plainly contraband, the second i)lainly not so,
and as to the third he says, ' In tertio illo genere usus ancipitis,
distinguendus erit belli status. Nam si tueri me non possum
nisi quae mittiuitur intcrcqnam, ncccHsifas^ ut alibi exposiummj
jus (labitj sed sub onere restitntionis, nisi causa alia accedat.'
(Lib. 3, ch. 1, sec. 5, etc.) Tliis 'causa alia' is afterward ex-
plained by 'ut si oppiduni obsessuin tenebam, si portus clausos,
et jam deditio aut pax expectabatur.'
' *' Bynkershoek, too, who Iuvh down Iuh gciioral ]>rinciple even in larger
, terms than Vattel, evidently coulines its application to cjuses of siege and
blockade/'
PRIZE CASES. 3859
^< This opinion of Grotias as to the third class of goods does
not appear to me to proceed at all upon the notion of contra-
band, but simply upon that of a pure necessity on the part of
the capturing belligerent. He does not consider the right
of seizure as a means of effecting the reduction of the enemy ^ but
a« the indispensable means of our defense.
<< He does not authorize the seizure upon any supposed ille-
gal conduct in the neutral in attempting to carry articles of
the third class to the ports of the enemy or upon any supposed
character of contraband attached to those articles. He author-
izes it ux)on the footing of that sort of absolute necessity on
the part of the belligerent making the seizure which by the
law of nature suspends in his favor sub modo the rights of
others. This necessity he explains at large in lib. 2, ch. 2,
sec. 6, etc. And in the above-recited passage he refers ex-
pressly to that explanation.
" Lib. 2, ch. 2, sec. 6. ^ 1. Videamus porro, ecquod juB com-
muniter homiuibus competat in eas res, quae jam propria3 ali-
quorum factaj sunt: quod quseri mirum forte aliquis putet,
cum proprietas videatur absorpsisse jus illud omne, quod ex
rerum communi statu nascebatur. Sed non ita est. Spectan-
dum enim est, quae mens eorum fuerit, qui primi dominia sin-
gularia introduxerunt : quie credenda est talis fuisse, ut quam
minimum ab a5quitat« naturali recesserit. ITam si scriptae
etiam leges in eum censnm trahendae sunt quatenus fieri potest,
multo magis mores, qui scriptorum vinculis non tenentur.
" ^ 2. Hinc primo sequitur, in gravissiina necessitate revivis-
cere jus illud pristinum rebus utendi, tanquam si communes
mansissent: quia in omnibus legibus humanis, ac proindeet
in lege dominii, summa ilia necessitas videtur excepta.
" ' 3. Hinc illud, ut iu navigatione, si quando defecerint ciba-
ria, quod quisque habet, iu commune couferri debeat. Sic et
defendendi mei causa vicini aedificium orto incendio dissipare
possum : et fanes aut retia disciudere, in quae navis mea im-
pulsa est, si aliter explicari nequit. Qua3 omnia lege civili non
introducta, sed exposita sunt.'
"In sections 7, 8, and 0 Grotius lays down the conditions
annexed to the exercise of this right of necessity. As, first, it
shall not be exercised until all other possible means have been
used; second, nor if the right owner is under a like necessity;
and thirdly, restitution shall be made as soon as practicable.
(Vide also Lib. 3, ch. 17, sec. 1.)
6627— VOL. 4 iO
I
3860 INTERNATIONAL ARBITRATIONS.
^^Grotias exemplifies what be lias said in the foregoing pas-
sages thus: Sec. X. * Hinc coUigere est, quomodo ei, qui bellum
pinm gerit, liceiit locum occupare, qui situs sit in solo pacato:
nimirum si non imagiDarinm, sed certuoi sit periculum, ne bos-
tis euoi locum invadat, et iiide irreparabilia damua det : deinde,
si nihil sumatur, quod uon ad cautiouem sit uecessarinm, put4i,
Duda loci custodia, relicta domino vero jurisdictione et fructi-
bus: postremo, si id fiat animo reddeudiv custodiie simulatqne
necessitas ilia cessavcrit. '' Enna aut nialo, aut necessario fac-
inore retenta/^ ait lAvinsiquia malum hiCj quicquid vel mini-
mum ahit a necessitate^ etc.^
^^ From these (Quotations it must be evident that Grotias in
the first-mentioned passage does not rely upon any principle
similar to that which is attributed to Yattel; and that he does
not hold the seizure of articles of the third class (among which
provisions are included) not hound to a port beseiged or block-
aded to be lawful, when made with the mere rieto of annoying
or reducing the enemy; but solely when made with a view to our
own preservation or defense under the pressure of that imperi-
ous and unequivocal necessity which breaks down the distinc-
tions of property, and, upon certain conditions, revives the
original right of using things as if they were in common.
*' In book 3, cb. 17, sec. 1 (of neuters in war), this author, re-
capitulating what he had said before on this subject, fprther
explains this doctrine of necessity, and most explicitly confirms
the construction I have placed upon ch. 1, sec. 5.
" liutlierforth, in commenting on lib. 2, ch. 1, sec. 5, also ex-
plains what Grotius there suys of the right of seizing provisions
upon the footing of necessity, and supposes his meaning to be
that the seizure will not be justifiable in that view, ' unless the
exigency of affairs is such that ice can not possibly do without
them.^ (2 lluth. p. 585.) And in coninieuting on lib. 3, ch. 17,
sec. 1, he says the necessity must be absolute and unavoidable,
(Vid. 2 Ruth. p. 580.)
" So far as Grotius considers the capture of articles of the
third class as a means of reducing the enemy^ he confines the
right within very riarrow limits: for he supposes the trade of
neutrals in these articles to be lawful even to a beseiged or
blockaded port, ' unless a surrender or a peace is quickly ex-
pected.'
" Instead of stating provisions to be contraband in any case
other than those of siege or blockade, he declares it to be the
PRIZE CASES. 3861
duty of aentrals to supply both parties to the war with provi-
sions (lib. 3, ch. 17, sec. 3), and places no other restriction upon
this duty than that they are not to relieve the besieged.
'^I think that it may be confidently concluded that this
writer, in place of countenancing the Orders of 1795 upon any
idea of contraband, may be relied upon in that view as a
strong authority against them.*
"Every other writer on the law of nations, so far as has
come within my observation, in treiiting upon the subject of
contraband limits the right of seizing goods not generally
contraband of war (and provisions among the rest) to such
cases as I have stated above.
"Eutherforth, in a work of great merit, speaking particularly
of the article of provisions, so conlines this riglit. (2 vol.
Inst. Nat. Law, p. 583.)
"Bynkershoek (whom I forbear to quote at large, since Mr.
Gore has already done so) also so confines it.
"Lee on Captures, Ch. XI. and XII., following Bynkershoek,
upon a full consideration of the practice of nations, also so
confijies it, and he concludes his XII. chapter in these words:
^From what has been said, it appears that the whole matter
turns upon the place being besieged or not, as the goods which
are not contraband (among which he reckons provisions) or
piohibited by treaty, those which are so being at all times
during the war lawful prize, etc' Postell, si^ecim. Jur. Marit.
sec. 11 has the same limitation.
> ** Even if it were proved that the opinion of Grotius, lib. 3, ch. 1, sec.
5, applied to tlio Orders of 1795, the rule of compensation established by
the majority of the board would still be proper. For this writer tells ns,
in the sections before quoted, as well as in the section which contains the
opinion relied upon, in favor of these orders, that when under the pressure
and plea of necessity we appropriate that which belongs to others, we must
make restitution or compensation to the owner; and of course w^e come
again to the question in the case of the Betsey , Furlong, ^ Ought not the
compensation to be eijual to the damage sustained f Vattel, speaking of
this same right of necessity and putting the same case with Grotius, has
this passage (Vattel, B. 3, cb. 7, sec. 112): * Extreme necessity may even
authorize the temporary seizure of a place and the putting a garrison
therein for defending itself against the enemy or preventing him in his
designs of seizing this place when the sovereign is not able to defend it.
Kut when the danger is over, it must be immediately restored, paying all
the charges, inconveniences, and damages caused by seizing the place.'
(Burlamaqui, Prineiplos of Nat. and Politic. Law, vol. — , p. — , 1 Rath,
p. 85, and Lee on Captures to the same effect; see also 2 Ruth. 587 and
Grotius, lib. 3, ch. 17, sec. 1.)''
3862 INTERNATIONAL ARBITRATIONS.
"See also Zoucb, and Valin's commrs. on the ordonnances of
Louis XIV., the same limitation.
"It appears, then, that so far as the authority of writers on
the law of nations can influence this question, the Orders of
1795 can not be rested ui)on any just notion of contraband.
Nor can they in that view be justified by the reasons qf the
thing or the approved usage of nations.^
" If the mere hope (however apparently well founded) of an-
noying or reducing an enemy by interrupting the commerce of
neutrals in articles of provision (which are no more contraband
in themselves than common merchandise) to ports not besieged
or blockaded will authorize that interruption, I think it will
follow that a belligerent may at any time prevent (without a
siege or blockade) all trade whatsoever with its enemy, since
there is at all times reason to believe that a nation having lit-
tle or no shipping of its own may be so materially distressed,
by preventing all other nations from trading with it, that such
prevention may be a powerful instrument in bringing it to
terms. The principle is so wide in its nature that it is, in thi8
respect, incapable of any boundary. One may reason upon it
to the total annihilation of neutral commerce, or rather it inevi-
tably leads to that inadmissible result. There is no solid dis-
tinction in the view of this principle between provisions and a
thousand other articles. Men must be clothed as well as fed,
and even the privation of the conveniences of life is severely
felt by those to whom habit has rendered them necessary.
Besides a nation at war, in proportion as it can be debarred of
its accustomed commercial intercourse with other states, must
be enfeebled and impoverishtid. And if it is allowable to a
belligerent to violate the freedom of neutral commerce in re-
spect to any one article of trade notoriously not contraband in
86 upon the expectation or imagined practicability of annoying
the enemy or bringing him to terms by a vseizure of that article
and ])reventing it from reaching his ports, why not upon the
' "Mr. Ilammoiurs jiistiticatiou of the provision Orders of 1793 to the
Americau Govcrmiu'nt seems to curry this principle to a stiU greater
extent, for be says in his letter to Mr. .IctVerson of the 12th September
1793 (coverinj^a copy of those Orders), * that by the law of nations, as laid
down by the most modern writers, it is expressly stated that all provisious
are to bo considered as contraband, and as such liable to eontiscatiou in
the case where the depriving; the enemy of those supplies is one of the
means intended to be employed for reducing him to reasonable terms of
peace. ' "
PRIZE CASES. 3863
same expectation of annoyance (equally rational, and indeed
more so) cut oft* as far as possible by capture all communication
with the enemy, and thus strike at once at his i)ower and re-
sources in a way which would not often fail of being eftectual.
"We know that in the case of siege or blockade there is no
distinction between provisions and other articles of merchan-
dise. The besieger may stop all commodities bound to the
place besieged. And if this barbarous mode of hostility is
ivdmitted to extend itself beyond its ancient limits, I know not
where it is to find others which, while they leave provisions
liable to seizure, shall exempt other commodities not contra-
band in themselves from a similar fate.
"The principle in question, into whatever form it may be
moulded, will not allow of such a restriction. It stands simply
uiK)n the possibility of injuring or bringing an eneniy to terms by
intercepting provisions on their way to his ports, or, as we find
it in a letter which I have just mentioned in a note, < Upon the
intention of employing the seizure of provisions on their way to
the ports of an enemy as the means of reducing him to reasonable
terms of peace,^ Surely if such a foundation be sufticient for
this principle, it will always be lawful for a belligerent to do
any act whatsoever or commit depredations upon any trade
whatsoever, provided it shall appear to be possible by doing so
to annoy or bring the enemy to terms — or i)rovided he shall only
intend by doing so to reduce the enetny to reasonable terms oj
peace.
" Hence this new rule of the law of nations would furnish a
complete apology for the Dutch Placart of 1030, by which they
prohibited all commerce with Flanders (doubtless with a pros-
pect and certainly with an intention of injuring and bringing
the enemy to terms by enforcing such a prohibition), and for the
convention between England and Holland in the treaty of
Whitehall, by which they agreed to prohibit all commerce with
France (unquestionably v/ith the same prospect and intention).
Yet these atteni])ts have been reprobated as lawless and op-
pressive by all the world, and in the last instance, upon a
counter treaty being entered into between Sweden and Den-
mark in 1693, for maintaining their rights and procuring just
satisfaction, the parties to the convention (says Yattel), per-
ceiving that the complaints of the two crowns were well
grounded, did them justice.
"It is true indeed that these attempts were not made with
f
3864 INTERNATIONAL ARBITRATIONS.
any reference to the newfound principle, for it was not then
supposed to exist.
" Those who struck so deeply at the commerce of Europe in
1630 and 1689 seemed to have believed that they could ouly
lend a color to their enterprise by pretending that they had
blockaded or intended to blockade the i)orts of their enemies.
The pretense was manifestly frivolous, but it would appear to
be at least as well founded as the vague allegation of a hope
or prospect or intention of reducing such a country a^ France by
famine.
'^ In a word, if a belligerent is empowered by the law of
nations to seize the property of neutrals upon its own terms
whensoever that belligerent shall believe or affect to believe
that by such means its enemy may be annoyed or reduced, few
nations would choose to remain neuter. A state of war would
be infinitely preferable to such a state of neutrality. I say
' aff'ect to believe,' because the principle now contended for is
liable to be thus abused. Who is to be the judge when there
exists a prospect of reducing the enemy by violating the ac-
knowledged liberty of commerce? If the belligerent is not to
be himself the judge, at least in the first instance, the prin-
ciple is an idle one and means nothing; and if he is to be the
judge, it follows that the principle is more than an idle one,
and will be applied in practice upon false as well as mistaken
grounds.
^' What standard have neutral nations to refer to for the pur-
pose of ascertaining the abuse of this limitless discretion!
The standard of siege or blockaded is deserted, and what can
we substitute in its place but speculative calculations uix>n
probabilities which will be as various as the interests, the
hopes, and the inclinations of those who make them, and never
can present a certain result until after they have been acted
upon! It is upon this ground, among others, that modern
writers on the law of nations reject the idea of (irotius that
all trade to places besieged or blockaded is lawful unless a
surrender or a peace is quickly expected.
"Without professing to enter into much detail upon this
occasion, the foregoing considerations appear to me to prove
satisfactorily that the Orders of 1795 can not, in the light in
which I am now considering them, be justified or excused.*
' "Even if the general position stated by Vattel be admitted in the utmost
ible latitude, stiU it would not follow that provisions belonging to
and bound to France could rightfully be seized as the Orders of
PRIZE CASES. 3865
*'It is now to be seen whether the eighteenth article of the
treaty gives any sanction to those orders. •
" Upon this part of the case I shall content myself with
transcribing the observations of a writer of the first eminence
1795 directed. Before articles not contraband in se can be seized, even
when 1)Ound to a besieged or blockaded port, the person attem])ting to
carry them must be apprised of such siege or blockade. And it is only
upon his persisting in his efibrts to supply the phice afU^r such knowledge
that his cargo becomes liable to seizure. In what way a neutral is to he
informed of the hope or prospects of one belligerent of reducing the other by
famine or of its intentions of resorting to the stoppage and seizure of all
provisions bound to the enemy as a means of reducing him to terms, I know
not, unless i^; be f^om the declarations of that belligerent; but we may, I
think, safely assume that it is indispensable that he should have this in-
formation before his cargo of provisions on its way to the ports of the
enemy not besieged or blockade<l can be taken upon any terms of contra-
band. In cases of seizure under the Orders of 1795 the American traders
had no information of this sort. Great iiritain had made no declaration
amounting to a notice of its hopes, prospects, or intentions in this particu-
lar, and how otherwise a neutral could obtain a knowledge of them it is not
easy to conjecture. The Orders themselves were not made public. They
were mere secret instructions to commanders of armed vessels, and were
not even sent to the court of admiralty, as is usual. Even now it is found
to be impracticable to procure a copy of them, although of every other
order issued during the war copies have been easily procured. The pro-
vision order of 1793 (which was made public) contained an alternative that
the vessel stopped might, upon giving sc^curity, proceed upon her voyage
to the ports of any country in amity with His Majesty. This, to be sure,
was little more than a nominal alternative ; but it does not appear that the
Orders of 1795 contained any alternative at all. How can it be imagined
that the absolute and unconditional seizure of those provision cargoes
could be lawful upon the footing of contraband, when those who were
conveying those cargoes to France had not and could not have the least
information of the hoxies, etc., of Great Hritain of reducing that country by
famine? They could not collect such hopes, etc., from any fact>s known
to them, for in truth there was not any state of things to produce a rational
prospect of that sort, and, indeed, it may well be doubted whether there
can be such a state of things in a country like France. To starve a single
town or fortress into terms is practicable, because it can not raise provisions
to supply itself and because it may be sutliciently prevented from receiv-
ing supplies from without. But the fertile soil, the extensive territories,
and seacoasts of France would seem to fix upon an attempt to treat it like
a town or garrison the character of wild and chimerical.
''At any rate there must be a concurrence of circumstances which have
not happened in that country during the present war to authorize the pros-
pect in question.
"If the Orders of 1795 are to be considered as an experiment on this
subject (and we are told that they are), that experiment has proved tho
rashness of the hope. But in fact these orders made no experiment which
f
3866 INTERNATIONAL ARBITRATIONS.
in America^ published while the treaty was under discussion
there. It will nctt be necessary to subjoin more than a few
reflections of my own, because it happens that the topics now
urged at the board in reference to this article are in substance
the same with those which occurred to the enemies to the
treaty in the United States, and are consequently considered
(and in my judgment satisfactorily refuted) in the number of
that publication which I am about to quote.
" Indeed, it may safely be asserted that if those objections
had not been believed in America to be totally groundless, we
should not now be sitting here in the character of commis-
sioners.
''*No. XXXII of Camillus:
"*The eighteenth article of the treaty which regulates the
subject of contraband has been grievously misrepresented;
the objections used against it with most acrimony are dis-
ingenuous and unfounded, etc.
<<^The most labored, and at the same time false, of the
charges against the eighteenth article is, that it allows provi-
sions to be contraband in cases not heretofore warranted by the
laics of nations, and refers to the belligerent party the, decision of
what those cases are. This is the general form of the charge.
The draft of a petition to the legislature of Virginia reduces
it to this shape: ''The treaty expressly admits that provisions
are to be held contraband in cases other than when bound to
an invested place, and impliedly admits that such cases exist
at present
''* The first is a palpable untruth which may be detected by
a bare perusal of the article. The last is an untrue inference
impregnated with the malignant insinuation that there was a
design to sanction the unw^arr an table pretension of a right to
inflict famine on a irhole nation.
"'Before we proceed to an analysis of the article, let us
review the prior situation of the parties.
"'Great Britain, it is known, had taken and acted upon the
ground that she had a right to stop and detain, on payment for
them, provisions belonging to neutrals going to the dominions
had not been already made by those of 1793 under circumstances equally
if not more favorable to such an entj^rprise. I believe the truth to be that
Great Britain intended by the Onlers of 1795 to supply its own wants and
had no expectation of making them instrumental in the reduction of the
enemy,"
PRIZE OASES. 3867
of France. For this violent and unpolitic measure, which the
final opinion of mankind will certainly condemn, she found
color in the sayings of some writers of repntation on public
laws.
"*A passage of this kind, from Vattel, has been more than
once quot^ in these terms : '' Commodities, etc.'' Heineccius '
countenances the same opinion, and even Grotins seems to
lean toward it.
" * The United States with reason disputed this construction
of the law of nations, restraining the general propositions which
appear to favor it to those cases in which the chance of reduc-
ing the enemy by famine was manifested and probable, such
as the cases of particular places bona fide besieged, blockaded,
or invested. The government accordingly remonstrated
against the proceeding of Great Britain and made every efiort
against it which prudence, in the then posture of affairs, would
permit. The order for seizing provisions was, after a time,
revoked.
"'In this state our envoy found the business. Pending the
very war in which Great Britain had exercised the pretension,
with the same administration which had done it, was it to be
expected that she would in a treaty with us even virtually or
impliedly have acknowledged the injustice or impropriety of
her conduct, etc.!
"*On our side to admit the pretension of Great Britain
was still more impossible. We have had every inducement of
character, right, and interest against it. What was the natural
and only issue out of this embarrassment? Plainly to leave
the point unsettled; to get rid of it; to let it remain substan-
tially where it was before the treaty — this I have good (/round
to believe was the real understanding of the two negotiators,
and the article has fulfilled that view.
"'After enumerating specifically what articles shall be
deemed contraband, it proceeds thus: "And whereas the
difficulty of agreeing on the jyrecise cases in which alo7ie provi-
sions and other articles^ not generally contraband, may be
^ '' I have examined Ileinorcius and Hnd that he ranks provisions among
the articles generally contraband of war for which he cites Bynkershoek,
ch. 9, and GrotiuH, lib. 3, rh. 17, sec. 3. It need not be stated that those
writers prove the reverse of this and that the reverse of it is universally
admitted. Indeed; the eighteenth article expressly admits the reverse
of it."
3868 INTERNATIONAL ARBITRATIONS.
regardeu as sucb, renders it expedient to provide against tbe
inconveniences and misunderstandings wbicli might thence
arise: It is further agreed that whenever any such articles,
so becoming contraband according to the lawn of nationHj shall
for that rciison be seized, the same shall not be confiscated, but
the owners thereof shall be speedily and completely indemni-
fied, and the captors, or, in their default, the government
under whose authority they act shall pay to the masters or
owners of such vessels the full value of all articles, with a
reasonable mercantile profit thereon, together with the freight
and also the demurrage incident to such detention."
^'^ The difficulty of agreeing on the precise cases in which
articles not generally contraband become so from particular
circumstances, is expressly assigned as the motive to the stip-
ulation which follows.
'^^This excludes the supposition that any cases whatever
were intended to be admitted or agreed. But this difficulty
rendered it expedient to provide against the inconveniences
and misunderstandings which might thence arise. A provi-
sion with this view is therefore made, which is that of a liberal
compensation for the articles taken. The evident intent of
this provision is, that in doubtful cases, the inconveniences of
the neutral i)arty being obviated or lessened by compensation,
there may bo the less cause or temptation to controversy and
rupture and the affair may be the more susceptible of negotia-
tion and accommodation. More than this can not be pretended,
because the agreement is '^tliat whenever any such articles so
become contraband according to the existing laws of nations
shall for that reason be seized, the same shall not be confis-
cated, but the owners, etc."
^' 'Thus the criterion of the cases in which articles not gen-
erally contraband may, from particular circumstances, become
so, is expressly the existing law of nations; in other words,
the law of nations at the time the transaction happens. When
these laws pronounce them contraband, they may for that rea-
son be seized; when otherwise, they may not be seized. Each
party is as free as the other to decide whether the laws of
nations do, in the given case, pronounc'c them contraband or not^
and neither is obliged to be governed by the opinion of the
other. If one party, on a false pretext of being authorized by
the laws of nations, makes a seizure, the other is at full liberty
to contest it, to appeal to those laws, and, if it thinks fit, to
PRIZE CASES. 3869
oppose, even to reprisals and war. This is the express tenor
of the provision. There is nothing to the contrary; nothing
that narrows the ground; nothing that warrants either party
in making a seizure, which the laws of nations, independent of
the treaty, do not permit, nothing which obliges either party
to submit to one, when it is of opinion the law of nations has
been violated by it.
" ' But as liberal compensation is to be madej in every case
of seizure, whereof difference of opinions happens, it will be-
come a question of prudence and expediency whether to be
satisfied with the compensation or to seek furtlier redress.
The provision will, in doubtful cases, render an accommodation
of opinion the more easy and, as a circumstance conducing to
the preservation of peace, is a valuable ingredient in the
treaty. A very different phraseology was to have been expected,
if the intention had been to leave each party at liberty to seize
agreeably to its own opinion of the law of nations^ upon the
condition of making compensation. The stipulation would
not then have been, " It is agreed that- whenever either of the
contracting parties shall seize any such articles so becoming
contraband." This makes, not the opinion of either party, but
the fact of the articles having become contraband by the laws
of nations, the condition of the seizure.
" 'A cavil has arisen on the term ''existing,^ aflif it had the
effect of enabling one of the parties to make a law of nations
for the occasion.^ But this is mere cavil. No one nation can
make a law of nations; no positive regulations of one state,
or of a partial combination of states can pretend to this char-
acter. A law of nations is a law which nature, agreement, or
usage has established between nations; as this may vary from
one period to another by agreement or usage, the article very
properly uses the term '' existing," to denote that law which,
at the time the transaction may happen, shall be then the law
of nations. This is a plain and obvious use of the term, which
nothing but a spirit of misrepresentation could have per-
verted to a different meaning.
"The argument against the foregoing construction is in sub-
stance this (viz): It is now a settled doctrine of the law of
nations that provisions and other articles not generally con-
^ ^'This has not been urged at the board on this occasion ; but in tlic case
of the Iktseyj Furlooj;, Mr. Gostling's objection to the jurisdiction
amounts to it.''
4
3870 INTERNATIONAL ARBITRATIONS.
traband can only become so when going to a place besieged,
blockaded, or invested; cases of this kind are fully provided
for in a subsequent part of the article; the implication, there-
fore, is that something more was intended to be embraced in
the antecedent part.*
" ^ Let us first examine the fact whether all cases of that
kind are comprehended in the subsequent part of the article.
1 say they are not. The remaining clause of the article divides
itself into two parts. The first describes the case of a vessel
sailing for a port or place belonging to an enemy without
knowledge that the same is either besieged, blockaded, or in-
vested, and provides that, in such case, the vessel may be
turned away but not detained, nor her cargo, if not contra-
band, confiscated, unless after notice she shall again attempt
to enter. The second describes the case of a vessel or goods
which had entered into such port or place before it was be-
sieged, blockaded, or invested, and declares that neither the
one nor the other shall be liable to confiscation, but shall be
restored to the owners thereof. These are the only cases de-
scribed or provided for. A third, which occurs on the slightest
reflection, is not mentioned. The case of a vessel going to a
port or place which is besieged, blockaded, or invested, with
notice of its being in that state when she commences her voy-
age, or previous to her re(;eiving notice from the besieging,
blockading, or investing party. This is left to the operation
of the general law of nations, except so far as it may be
affecte<l in respect to compensation by the antecedent clause.
Thus the fact, which is the foundation of the argument, fails,
and with it, of course, the argument itself.
" ' But had this been otherwise the conclusion would still
have been erroneous: the two clauses are entirely independ-
ent of each other, and though they might both contem2)late
the same cases, in whole or in part, they do it with an eye to
very ditlerent purposes.
*' 'The object of the first is to lessen the dfinger of misun-
derstanding by establishing this general rule — that whenever
articles not commonly contraband become so from particular
circumstances, according to the law of nations, they shall still
*'*Thi8 argument at the board stood thus: Cases relative to a siege,
etc., are fully provided for in the latter part of the article, and therefore
the former part intended to embraoe something more."
PRIZE CASES. 3871
not be confiscated, but, when seized, the owners of them shall
beindemuified.
** ' The object of the last is to regulate some special conse-
quences with regard to vessels and goods going to or which
had previously gone to places besieged, blockaded, or invested,
and in respect to which the dispositions of the law of nations
may have been deemed doubtful or too rigorous. Thus it is
held that the laws of nations permit the confiscation of ships
and goods going to places besieged, blockaded, or invested.
But this clause decides that if going without notice, so far
from being coufiscated, they shall not even be detained, but
shall be permitted to go whithersoever they please. If they
persist, after notice, then the contumacy shall be punished
with confiscation. In both instances the consequence is en-
tirely difterent from anything in the antecedent clause.
" ' There, there is seizure, with compensation. Here, in one
instance, seizure is forbidden and permission to go elsewhere
is enjoined. In the other instances the ofl'ending things are
confiscated, which excludes the idea of compensation. Again,
the last part of the clause stipulates, in the case which it
supposes, the restoration of the property to its owners, and so
excludes both seizure and compensation. Hence it is appar-
ent the objects of the two clauses are entirely foreign to each
other, and that no argument nor inferencie whatsoever can be
drawn from the one to the other.
'' ' If it be asked, what other cases there can be except those
of places besieged, blockaded, or invested ? And if none other,
what difficulty in defining them ? Why leave the point so vague
and indeterminate? One answer, which indeed has already
been given in substance, is that the situation of one of the par-
ties prevented an agreement at the time; that not being able
to agree, they could not define, and the alternative was to avoid
definition. The want of definition only argues want of agree-
ment. It is strange logic to assert that this or that is admitted
because nothing is defined.
"'Another answer is that even if the parties had been agreed
that there were no other cases than those of beseiged, block-
aded, or invested places, still there would have remained much
room for dispute about the precise cases, owing to the imprac-
ticability of defining what is a besieged, blockaded, or invested
place. About this there has been frequent controversy ; and
the fact is so complicated, and puts on such a variety of shapes,
i
3872 INTERNATIONAL ARBITRATIONS.
that 110 definition can well be devised which will suit alL
Thence natiims, in their compacts with each other, frequently
do not attempt one, and where the attempt has been made it
has left almost as much room for dispute about the definition
as there was about the thing.
^^ ' Moreover, is it impossible to conceive other cases than
those mentioned above, in which provisions and other arti-
cles not generally contraband might, on rational grounds, be
deemed so? What if they were going expressly, and with
notice, to a besieging army, whereby it might obtain a supply
essential to the success of its operations t Is there no doubt
that it would be jutisfiable in such case to seize themt Can
the liberty of tnide be said to apply to any instance of direct
and immediate aid to a military expedition? It would be at least
a singular effect of the rule if provisions could be carried with-
out interruption for the supply of a Spanish army besieging
Gibraltar, when, if destined for the supply of the garrison in
that place, tliey might of right be seized by a Spanish fleet.
^^ ^ The calumiuators of the article have not had the candor to
notice that it is not confined to provisions^ but speaks of provi-
sions and other articles. Even this is an ingredient which com-
bats the supposition that countenance was intended to be given
to the pretension of Great Britain with regard to provisions
which, depending on a reason peculiar to itself, can not be
deemed to be supported by a clause including other articles,
to which that reason is entirely inapplicable.
'^* There is one more observation which has been made
against this part of the article which may deserve a moment's
attention. It is this, that though the true meaning of the
clause be such as 1 contend for, still the existence of it affords
to Gieat Britain a pretext for abuse which she may improve
to our disadvantage. I answer, it is difiicult to guard against
all the perversions of a contract which ill faith may suggest.
But we have the same security against abuses of this sort
which we have against those of other kinds, namely, the right
of judging for ourselves, and the power of causing our rights
to be respected. VVe have this plain and decisive reply to
make to any uncandid construction which Great Britain may
at any time endeavor to raise: ^'The article jwintedly and ex-
plicitly makes the existing law of nations the standard of the
cases in which you may rightfully seize provisions and other
articles not generally contraband. This law does not author-
PRIZE CASES. 3873
ize the seizure in the instance in question. You have, conse-
quently, no warrant under the treaty for what you do.''
^^ <The same disingenuous spirit which tinctures all the con-
duct of the adversaries of the treaty has been hardy enough
to impute to it the last order of Great Britain to seize pro-
visions going to the dominions of France.
'^ 'Strange that an order issued before the treaty had ever
been considered in this country, and embracing the other
neutral powers besides the United States, should be repre
sen ted as the fruit of that instrument! The appearances are
that a motive no less imi)erious than that of impending scar-'
city has great share in dictating the measure, and time, I am
persuaded, will prove that it will not ever he pretended to justify
it by anything in the treaty.'^
''In this last persuasion it appears that this writer has been
mistaken, but his inducements to adopt it will hardly fail to
convince those who shall be disposed to examine them with
candor that, although the persuasion has not been coun-
ti*nanced by the event, it will not be brought into discredit
by it. • • •
"2nd. We are next to enquire whether these orders are
Justified by necessity; Great Britain being, as alleged, at the
time of issuing them threatened with a scarcity of those arti-
cles directed to be seized.
"1 shall not deny that extreme necessity may justify such a
measure. It is only important to ascertain whether that ex-
treme necessity existed on this occasion and upon what terms
the right it communicated might be carried into exercise.
" We are told by Grotius that the necessity must not be im-
aginary, that it must be real and pressing, and that even tlien
it does not give a right of appropriating the goods of others
until all other means of relief consistent with tlie necessity
have been tried and found inadequate. Ilutherforth, Bur-
lamaqui, and every other writer who considers this subject at
all will be found to concur in this opinion.
"No facts are stated to us by the agent of the crown from
which we might be justified in inferring that Great Britain
was pressed by a necessity like this, or that previous to her
resorting to the orders of council other practicable means were
tried for averting the calamity slie feared. It is not to be
doubted that tliere were other means. The otter of an advan-
tageous market in the difterent ports of the kingdom was an
3874 INTERNATIONAL ARBITRATIONS.
obvious expedient for drawing into them the produce of other
nations. Merchants do not require to be forced into a profita-
ble commerce. They will send their cargoes where interest
invites; and if this inducement is held out to them in time it
will always produce the effect intended.
" But so long as Great Britain offered less for the necessaries
of life than could have been obtained from her enemy, was it
not to be expected that neutral vessels should seek the ports
of that enemy and pass by her own? Can it be said that
under the apprehension (not under the actual experience) of
scarcity she was authorized to have recourse to the forcible
seizure of provisions belonging to neutrals without attempting
those means pf supply which were consistent with the rights
of others and which were not incompatible with the exigency f
'^After these orders had been issued and carried into execu-
tion the British Government did what it should have done
before; it offered a bounty upon the importation of the arti-
cles of which it was in want. The consequence was that neu-
trals came with these articles until at length the market was
found to be overstocked. The same arrangement, had it been
made at an earlier period, would have rendered wholly useless
the orders of 1795.
**I do not undertake to judge, for I have no sufficient data
upon which to judge, whether at the time of issuing these
orders there was or was not reasonable ground for apprehend-
ing that sort of scarcity which produces severe national dis-
tress or national despondency unless extraordinary measures
were taken for preventing it.
*' But it will not admit of a question that there was no ground
for apprehending that such a calamity would happen unl^s the
govern ment resorted to depredations upon neutral trade and
seized bi/ violence the property of its friends.
**That such a recourse should not be placed in the front of
the expedients for warding off an evil like this, seen only in
perspective, is too plain for argument.
*' 1 do not desire on this occasion to determine more than is
necessary to the formation of a correct judgment upon the case
before us, and hence it is that I content myself with the limited
view I have here taken of this part of* the subject.
" Let it now be supposed that the alleged necessity was such
as warranted the orders of 1705 and the seizure under them.
How does this vary the rule of compensation f Upon this sup-
PBIZE CASES. 3875
position DO more will be proved than that Great Britain might
by force assume the preemption of the articles in question.
But can it be imagined that she could assume this preemption
u])on any other terms than giving to the neutral as much as
he could have obtained from those to whom he was carrying
themf
<' Great Britain might be able to say to neutrals < You shall
sell to us,' but it does not follow that she could also say ^ You
shall sell to us upon worse terms than you would have pro-
cured elsewhere in the lawful i)rosecution of your commerce.'
<< The authorities already cited in a note will answ^er these
questions satisfactorily. (Grotius, lib. 2, ch. 2, sec. 6, etc. ; lib.
3, ch. 1, sec. 5, ch. 17, sec. 1, etc; 1 Buth. 85, and Burlamaqui;
Vattel, B. 3, ch. 7, sec. 122; 1 Kuth. 405; 2 Ruth. 586, 587.)
^^ But upon such a subject neither authorities nor arguments
can be required.''
Pinkney, commisHioner, Juno 25, 1797, case of the Neptune; Articlo VII.,
treaty between the United States and Great Britain of June 19, 1797.
Opinion given in the case of the Nep-
Opinion of Trambnu, Jeffries, master— Question of the
Fifth Commissioner. ' « , , , ,
right of blockade, and to prevent the intro-
duction of provisions.
"This was an American vessel, bound to a port in France,
with a cargo consisting of rice, tobacco, indigo, etc., American
I)roperty, captured in June 1795, by one of His Britannic Miy-
esty's frigates, acting under the general order of April 1795,
which directed the bringing into British ports of all neutral
vessels laden in whole or in part with i)rovisions, and bound
to ports of the enemies of Great Britain.
"Proceedings were had in this case, in the form which was
adapted to the occasion, and which commenced with an order
of the judge of the high court of admiralty, that the cargo
should be soUl to His Majesty's government, and resulted in
a decree of the same court, that both vessel and cargo be-
longed as claimed to neutrals — an order of the court to restore
the vessel, with freight, demurrage, and expenses — costs, both
of captor and claimant, to be paid by His Majesty's govern-
ment, and the value of the cargo to be paid by the same to
the neutral owner.
** The vessel was, of course, restored as ordered, and the
value of the cargo ascertained in the manner following, viz:
The registrar and merchants proceeded, under an order of thQ
r)^>27— VOL. 4 41 K
3876 INTERNATIOHAL ARBITRATIONS,
court, to make their report in the usual form, in which they
stilted the invoice price, and ten per (*ent thereon as the value
of the cargo, to be paid by His Majesty's government to the
neutral owners. Against this ex parte mode of sale, as well
as against the measure of value, the claimant, by his a^nt,
remonstrated to the registrar and merchants, while making up
their report, as inadequate and unjust, inasmuch as the sum
resulting from thfs mode of estimation was much below what
would be the result at the current market price at the port of
destination, or even at the port of Ix>ndon, requesting at the
same time permission to sell the cargo himself under bonds
that it should be sold and delivered in England. To this ap-
plication and remonstrance he received for answer from the
registrar and merchants, Hhat, although his case was doubt-
less a hard one, yet, as they acted by the express order of gov-
ernment, they could give no more, being bound by instructions
oflieially received, to give in all such cases ten per cent on the
invoice price, as a fair mercantile i)ix>fit.' The agent for the
claimant, however, not satisfied with this answer pursued his
inquiries further until he received from a high official character
(as stated to us in his affidavit) the same answer, and an ab-
solute refusal of liis request for permission to sell the property
himself under bonds that it should be sold in England. Con-
cluding, then, as it was natural for one of His Majesty's sub-
jects to do, that information so obtained was true and correct,
and perceiving it to be useless and presumptuous for an in-
dividual to struggle further against an order of His Majesty's
government, lie abandoned any further attempt to obtain a
remedy in the ordinary course of judicial proceedings, and be-
ing pressed by the necessity of meeting bills which had been
drawn in America on the expected proceeds of this cargo, and
which otherwise must have gone back, subject to such heavy
damages as might prove ruinous to his correspondent there —
but protesting at the same time against the injustice of the
mode of sale and the inadequacy of the sum ordered to be
paid, according to the report of the registrar and merchants —
he received the same, and now comes before this board, claim-
ing such further sum as shall appear to the board a full and
adequate conii)eusation for the loss and damage which he has
sustained.
''A memorial, in the usual form, has been preferred to the
board in this case, accompanied by sundry papers. Copies of
PRIZE CASES. 3877
this memorial, and of these papers, have been submitted to
the agent of His Britannic Majesty, in the usual manner, and
the usual time has been allowed to him to lay before the board
his objections in writing to the prayer of the memorial. Those
objections have been received, and without offering any rea-
sons exclusively applicable to this particular case, or arising
out of any particular circumstances attending it, we find them
to be general against the powers of the commissioners as ex-
tending to cases of this description; and they appear to rest,
for much of their force, on the construction of the eighteenth
article of the existing treaty between Great Britain and
America. On the correctness of this general objection a dif-
ference of opinion exists at the board, which leaves the deci-
sion of the question to me.
^'A just sense of the very high responsibility which devolves
upon me, under such circumstances, induced me to form an
early determination to give my opinion in writing on all such
occasions — and that determination is strengthened by the
painful and unfortunate frequency with which such occasions
have hitherto recurred — in order that, in discharging this ardu-
ous and unpleasant part of my duty, I might impartially give
their just weight to the arguments of each of the commission-
ers (all of whom, from the nature of their education and stud-
ies, unquestionably possess a degree of knowledge far superior
to what I can pretend on subjects of this nature.) It was
further -my wish to have been indulged, on all such occasions,
with the siglrt of the written opinion of each member of the
board previous to giving my own. I should then have seen
the precise and meditated arguments of learned men reduced
to point, and divested of that looseness and inaccuracy of
expression which too generally accompany verbal discussions;
•
and those arguments thus correctly and visibly before me,
would neither have been subject to be weakened by the incor-
rectness of memory, nor to be distorted by any misunder-
standing arising from the rapidity of conversation. I have
requested this indulgence in the present case; and if it should
seem from my deciision, tliat I have been less iuMuenced by
any of the arguments which I have heard, than those gentle-
men who liave made use of them may feel that they deserved,
I hope to be forgiven.
'*Tlie numerous and concurring authorities which the gen-
tlemen witli whom I agree in opinion have in the coarse
3878 INTERNATIONAL ARBITRATIONS.
their written argumeuts on this case quoted from the writing
of the most eminent men appear to me so clear and conclusive
as to render it equally unnecessary, as it would be presumptu-
ous in me, to follow them in that mode of examining the sub-
ject. I shall therefore confine myself to such views of it as
might naturally ofl'cr themselves to men of no extensive read-
ing or ]>rofound reflection, and such as may appear, perhaps,
more particuhirly to att'ect the equity than the law of the case.
"The subject obviously divides itself into two leading
questions:
"First. Has the neutral claimant in this case sustained loss
or damage by reason of an irregular or illegal capture or con-
demnation of his i)ropertyf
" Second. Could the neutral claimant actually have obtained,
had, and received, full and adequate compensation for such
loss and damage, in the ordinarii course of judicial proceedings?
"If the ship had been taken in the act of entering or at-
tempting to enter a port or place actually besieged, blockaded,
or invested, and known to tlie neutral master to be so, I believe
there is little doubt but the capture, considered under the
existing law of nations, would be regular and legal.
"But if with His Majesty's agent \^e admit that the exist-
ing treaty between Great Britain and America was in opera-
tion at the time of this seizure (although not then ratified), it
will then follow undeniably that even if the ship had been
stopped in the act of entering, or attempting to enter, a port
or place actually besieged, blockaded, or invested, yet if the
neutral master was ignorant of that fact he could not regu-
larly and legally have been seized as prize, nor even detained.
His ca«e would have fallen under the jjrovision of the third
section of the eighteenth article of the treaty, and it would
have been the duty of the captor to have notified to the neutral
the state of the place, and (having prevented his entering such
port) to have permitted him to proceed to any other port or place
without interruption. If then, even in attempting to enter a
port or place actually besieged, blockaded, or invested (the neu-
tral master not knowing it to be so) it was inconsistent with this
eighteenth article to seize or even to detain the ship, much
less must such seizure or detention appear to be justifiable
under that article, the ship being bound to a port not besieged,
blockaded, or invested, for it is not pretended that BordeiUix
(the port of destination in this case), or even any particular
PRIZE CASES. 3879
port in France, much less the whole country, was at the period
in question in such a state.
<^ But it is held that cases other than those of actual siege,
blockade, or investiture, are evidently alluded to in the eight-
eenth article of the existing treaty, as Justifying ' the seizure
of provisions, or other articles going to the enemy, in certain
cases.' This, however, does not appear to me to be correct.
There is, indeed, an evident allusion to, or rather declaration
of, a diff'erence of opinion on this subject, on which the two
negotiators finding it 'difficult to agree.' All decision appears
to have been therefore intentionally waived; and in order that
^ this difficulty of agreeing on the precise cases in which alone
provisions, and other articles, not generally contraband, may
be regarded as such,' might not become a source of future con-
tention between the two nations, in consequence of the possible
continuation of contrary opinions on this subject of special
contraband, it was wisely stipulated * that when provisions, or
any such articles, so becoming contraband, according to the
existing law of nations, shall for that reason be seized, the
same shall not be confiscated, but the owners thereof shall be
speedily and completely indemnified.' The stipulation extends
only to cases where provisions, etc., shall become contraband,
* according to the existing law of nations.' Those appear to
be limited in all the books to cases of actual siege, blockade,
or investiture. It is however further alleged that * every case
where there exists a reasonable hope of reducing the enemy to
terms of peace by famine,' is also within * the spirit of the
law.' But such a description must necessarily remain vague
and indefinite, because it may always be questioned by the one
party whether the hope entertained by the other was reasona-
ble or not. No new cases or descriptions of contraband are
either established or admitted by this eighteenth article,
which, on the contrary, instead of increasing the restrictions
and inconveniences of neutral commerce, and thus opening
new sources of dispute and misunderstanding, I do conceive
to have been intended (as several other articles of this treaty
evidently were) to remove the grounds and lessen the proba-
bilities of future mutual complaints; to extend, rather than to
narrow, the benefits of the state of neutrality, and thus to
diminish to mankind in general tliose inconveniences which
are necessarily and unavoidably consequent upon every exten-
sive wai' between great maritime nations. This article pro-
i
3880 INTERNATIONAL ARBITRATIONS.
vided only for cases * where provisions, or other article not
generally contraband, may become so, according to the exist-
ing law of nations.' What is the universally acknowledged
consequence of an attempt to carry contraband goods to an
enemy, according to those existing laws! An unequivocal right
not merely to seize, but to confiscate icithout reserve. But this
eighteenth articles stipulates that provisions, etc., ' «o becoming
contrabands^ shall not be confiscated. How, then, does this
article. vary the law! Not by enlarging the description of
contraband beyond what shall be consistent with the existing
law of nations, and to the prejudice of the state of neutrality,
but by stipulating, to the benefit of neutral commerce and of
mankind at large, that even 'in certain cases where provisions
and other articles not generally contraband, may become sOj
according to the existing law of nations , and for that reason be
seized,' yet ' the same shall not be confiscated, but' (on the con-
trary) 'the owners thereof shall be speedily and completely
indemnified.'
•'The tenth article of the treaty appears to have been sug-
gested by the same i)rinciple, which I believe to have animated
the two eminent negotiators on other occasions — a sincere
desire to diminish rather than to extend those evils which
inevitably accompany the state of war; and this article, which
is here, I believe, for the first time made part of a solemn
engagement between two nations, will do honor to those who
have here introduced it, in proportion as the long neglect of a
stipulation so obviously just is unworthy of praise in the
negotiations of past aj^es. Let me suppose that some meta-
physical head should undertake to derive a right, under that
article, to confiscate property in the public funds or debts due
from individuals in the event of peace and good understand-
ing, because such confiscation is prohibited only 'in any event
of war or national dift'erence.' The odd ingenuity of such an
argument would excite our surprise, and perhaps call up a
smile; yet would not this logic be nearly as sound as that
which, from a stipulation to pay for goods 'become contra-
band in certain cases, according to the existing law of nations,'
would infer a right to seize as contraband provisions, &c., in
cases where they are manifestly not so according to that lawf
" The argument in justification of the i)resent seizure is then
reduced to this, 'that the right of the belligerent to seize as
contraband provisions going to tlie enemy extends to all cases
PRIZE CASES. 3881
where there exists a reaaonable hope or expectation of redac-
ing an enemy to terms of peace by famine.' I willingly waive
all those objections to this vague and indefinite principle, which
arise in general from the difiicalty of ascertaining what are
cases in which a hope of this nature may reasonably be enter-
tained, because I do not think it dii!icult to demonstrate that
the case before us was not of that description.
•'In Coxe's View of America, pubUshed in 1793, will be
found a correct and official statement of the exports of the
United States for the preceding year, 1792, from which we learn
that the whole quantity of breadstuff exported from that
country during that year was as follows, viz:
Poimds.
"Of flour, 824,464 barrels, at 190 lbs. each, is 156, 64S, 160
"Of wheat, 853,790 bushels, at 60 lbs. each, is 51,227,400
" Of maize, 1,964,973 bushels, at 60 lbs. each, is 117, 898, 380
"Of rice, 141,762 tierces, at 300 lbs. each, is 42,528,600
"And in all other articles of a nature convertible into bread,
including ship-bread and biscuit 31,697,460
"Totalof exports, pounds 400,000,000
"To this add for increase of weight by making into bread,
one-fourth 100,000,000
"And we shall have, pounds of bread 500,000,000
"being all that could be made from the whole exports of America for the
year 1792.
*'In a work published in France in 1775, *Sur la Legislation
et le commerce de Grains,' regarded as one of the most estima-
ble and correct works of the kind extant, may be found a note,
at page fifty-nine of the first Paris edition, Chap. XIII., in
which the author states his opinion of the quantity of corn or
bread annually and daily consumed by the inhabitants of
France and a very correct detail of the principles and induc-
tions on which this opinion is grounded, from which it appears
that the inhabitants of France were then estimated at twenty-
four millions and that each inhabitant was estimated to require
for food about two septiers or eight and two-thirds Winchester
bushels of corn each year, equal to one and a half pounds of
bread daily. In his estimate of the quantity of bread this
author has been followed by Neckar and others, but almost all
agree that the actual number of inhabitants in France exceeds
his estimate. I will, however, follow him entirely, and by his
estimate we shall have thirty-six millions of pounds of bread
as the daily consumption of the French nation.
Ik
3882 INTERNATIONAL ARBITRATIONS.
"We have before seen that all the corn, etc., exported from
the United States of America in the year 1792 would have
produced five hundred million pounds of bread. Dividing this
sum by thirty-six million pounds, the amount of the daily con-
sumption of France, we have as the result nearly fourteen
days' bread for the people of that country. Fourteen days ai'e
the twenty-sixth part of a year. Supposing, then, that each
person in France should prudently economize each day one
twenty-sixth part of his customary allowance of bread, and
instead of twenty four ounces, eat somewhat more than twenty-
three, and the same effect would be produced as by the impor-
tation of all that America could export.
" I am well aware that in a case of sudden alarm or appre-
hension of scarcity in a country habituated to ease and plenty,
where the actual evil is magnified tenfold by the united opera-
tion of fear and avarice, the importation of such a proportion
of foreign corn would be of vast importance by dispelling the
fears of the timid and by opposing the dread»of a falling mar-
ket to a disposition to monopolize. Such was lately the state
of England. The alarm (which is now known to have had lit-
tle true foundation J was too sudden and universal to be rem-
edied by the slow but certain operation of a system of economy
only, and government wisely had recourse to the same passion
which was the principal cause of the evil. A bounty on foreign
corn was offered, and the importation of a quantity, compara-
tively very trilling, produced the most salutary and important
effects. The public sale of this small quantity in the London
market produced a reduction of price, and, of course, from
every part of the country corn was hurried to market by those
who before had been busily em])loyed in hoarding and with-
holding it. But such was not the state of France at the period
in question. There the people had long apprehended and
sometimes felt a real degree of scarcity. The attempt to re-
duce them to terms of peace by famine had already been made
in 1793 without success, althougli under circumstances much
more favorable to the hopes of her enemies. The people had,
of course, been trained to habits of economy, and had learned
to rely on that resource whose operation, when once generally
adopted, is infinitely more eft'ectual than any aid which may
be hoped for from foreign supplies. I must be i)ermitted to
observe that in the loregoing statement I have given the most
unlimited extent to the argument against me, for in truth
PBIZE OASES. 3883
almost all the wheat which is exported from the United States
goes to Portugal, where, for the benefit of the manufactures,
the importation of flour is prohibited, and almost all the maize
or Indian corn is sent to the West Indies, and there forms a
principal part of the food of the blacks, so that, deducting
these two great articles from the account, it can scarcely be
possible that even on extraordinary occasions moi-e than one-
half of the exports of America can find their way to France,
Thus, in fact, this hope of reducing the French nation to terms
of peace by famine (so far as the interruption of American
commerce would iiiflueiice) is founded on the suj^position that
the people of France may be reduced to the necessity of eat-
ing one fifty-second part less than their usual allowance of
bread. •
*' But it may fairly be objected to the whole of this argument
that it is altogether hypothetical, and that I have considered
only the resources drawn from America, whereas 1 ought to
consider that all supplies from abroad were intended to be
intercepted by the entire interruption of neutral commerce. I
am happy to have it in jny power to give more correctness to
this part of my argument, and to state from official documents
what real effect was produced both by the orders of 1793 and
by those of 1795.
"An important paper (No. 23 of the appendix to the third
report of the committee of secrecy, printed in April 1797),
showing the amount in value of the corn imported into and
exported from Great Britain in the years 1793, 1794, 1795, 1796,
and 1797, gives us correct and unquestionable information on
this subject. It is there stated that the corn of all nations,
either detained or brought into ports of Great Britain as prize,
amounted to the following value, viz:
"In 1793 ami 1794 to £232,771 128. 5d.
'Mnl795to 129,063 38. 7d.
**Inl796to 20,384 13s. 8d.
<'I will suppose this entire quantity to have consisted in
wheat, which, in the paper referred to (No. 23) is stated to be
valued at 328. the quarter or 4s. the bushel. At that rate of
value the above several sums will give us the following quan-
tities of wheat, viz:
"1793 ami 1794, bushels, 1,163,860, at 60 lbs. each, is
69,8;3!,6()0lb8.
'< 1795, bushels, 645,316, at 60 lbs. each, is 38,718,960 lbs.
r
3884 INTERNATIONAL ARBITRATIONS.
*'1796, bushels, 101,923, at 00 lbs. each, is 0,115,380 lbs.
** Let it next be understood that the whole of this corn so
captured or detained, at those several periods, was destined to
ports of France, then we shall find that by their capture the
French nation was actually deprived of the following part of
their bread, viz :
"In 1793 and 1794, of almost two days' bread; in 1795, of
something more than one day's bread, and that in 1796 they
did not lose one breakfast.
" Such was the real effect produced by the operation of the
orders of 1793 and 1795.
'*At the time of the transaction which gave rise to the pres-
ent discussion the trivial ettect of the order of 1793 must have
been known, and it is palpable, therefore, thattheordepof 1795
could not have been founded in any rea^ondble hope or exx)ec-
tation of thereby reducing the French nation to terms of
peace by famine. An ardent and enthusiastic enemy can not
rva^onahhi be expected to make any considerable sacrifice of
his animosities, his prejudices, or his pursuits in consequence
of such very tritling inconveniences as we see were the conse-
quence of the orders in question.
"From the foregoing observations I trust it sufficiently
appears that the capture in question can not be justified by
the law of nations, under the description of goods attempted
to be carried to a place actually besieged, blockaded, or
invested; nor yet under the eighteenth article of the existing
treaty; nor yet under the broad idea of a reasonable hope of
reducing the enemy by famine. It only remains to inquire
whether there existed at the time any necessity on the part of
the captor so pressing jis to justify the act.
"The necessity which can be admitted to supersede all laws
and to dissolve the distinctions of property and right must be
absolute and irresistible, and we can not, until all other means
of self preservation shall have been exhausted, justify by the
plea of necessity the seizure and application to our own use
of that which belongs to others. Did any such state of things
exist in Great Britain in April 1795f Were any meanis em-
ployed to guard against an apprehended, rather than an exist-
ing, necessity before the measure in question was adoptedf.
And when a degree of scarcity was felt a few months later in
the year was not the obvious and inoffensive measure of offer-
ing a bounty on corn imported eft'ectual, and that speedily!
PRIZE CASES. 3885
It can not, then, be presnmed that the captare in question is
any more to be justified by the plea of necessity than it is by
that of right, and I must, therefore, conclude that the neutral
claimant has in this case suffered loss and damage by reason
of an irregular and illegal capture.-'
Trumbull, lifth roinmisdioner, .July 26, 1797, case of the Neptune; Article
VII., treaty between the United States and Great Britain of November 19,
1794.
** In the case of Tomas Gonzales and Jesus
Case of Oonzaies. S. de los Bautos r. The United States, Ko. 632,
the umpire is of opinion that it is not suffi-
ciently proved that the claimants were Mexican citizens at the
time of the origin of the claim, nor that the 2,700 pounds of
lead, of which they claim the value, really belonged to them.
Further, it appears from the evidence that the claimants first
sent the lead to Las Piedras, but not having succeeded in
selling it there they dispatched it on the 5th of May 1865 to
San Antonio, in Texas. It must therefore have entered the
territory of Texas very soon after that date, and at that time
lead was certainly contraband of war and was liable to seizure.
The proclamation of the President removing restrictions on
commercial intercourse with the States lately in rebellion was
not issued till the t22nd of May, and the further proclamation
declaring that the insurrection which theretofore existed in
the State of Texas was at an end bears the date of August
20th, 1866. The opinion of the umpire is that the original
importation into Texas of the lead in question was a violation
of the laws of the United States; that it was still contraband
of war on the 15th of March 1866, wlien it was seized by the
authorities of the United States, and that consequently its
seizure and confiscation were justifiable."
Thornton, umpire, Februjiry 1(>, 187G, Convention of July 4, 1868, MS.
Op. VI. 316.
3. Blockade.
^^The schooner Susan, an American regis-
Caseof the "Sugan." tered vessel, owned by the claimant, sailed
from Baltimore for the (hilf of Mexico on the
10th November 18l*4. On tlie 20th December following she
was captured oft* the ^lexican coast, and near the castle of
San Juan de UUoa, by the Mexican national schooner Ana-
huac. The claimant alleges in his memorial that the schooner
i
3886 INTERNATIONAL ARBITRATIONS.
'was carried into Sacrificos ami thence to Alvarado, wbere,
as 18 understood, both the vessel and cargo were condemned.'
He avers a total loss of both vessel and cargo, and claims in-
demnity from the (rovernnient of Mexico.
** In order to determine whether the claim preferred is valid,
it becomes necessary to examine the cause of the capture and
subsequent condemnation. The claimant alleges that the
schooner was captured *on the allegation of intention to trade
with the castle of San Juan de Ulloa, then in possession of
the Spaniards.' An original letter from Taylor, Sicard & Co.,
dated Vera Cruz, 9th January 1825, addressed to the claimant
and tiled by him as a part of his evidence in this case, states:
* On the 3rd instant the schooner Susan, Captain Newman,
was brought in here as a prize, charged with the intention of
being bound to the castle.' The LTnited States consul at Vera
Cruz, in a letter to the State Department, dated 5th January
1825, said, ' The day before yesterday an American schooner,
the Susan^ Captain Newman, was sent in here as a prize, hav-
ing been captured off the castle with provisions, by one of the
Mexican vessels of war.' These statements constitute all the
evidence before the board which explains the cause of the cap-
ture. The subsecjuent condemnation and sale of the vessel
and cargo by the Mexican authorities is admitted by the
claimant, and is also stated in letters which he has tiled as a
portion of his evidence.
"No record of tlie proceedings and judgment of the prize
court in Mexico has been ])resente(l to the board. We are there-
fore left to inter the grounds of the condemnation from the
general statements of the cause of the capture above referred to.
The claimant's counsel urges that 'the claim for the schooner
ISusan and her cargo is sustained upon the ground that they
were not regularly condemned by a court of competent juris-
diction.' The board can not ])resume this in the absence of
testimony to prove it. It is a material fact, the burden of
proving which lies upon the claimant. It being admitted that
the vessel and cargo were condemned by a prize court in
Mexico, the board must presume that it was a court of compe-
tent jurisdiction, and that its proceedings were regular. If
the record of the court was before us it might disprove both of
these presumptions and sustain the ground assumed by the
claimant.
"The fact alleged by the claimant that he has been unable
PRIZE CASES. 3887
to procure a copy of the record does not change the presump-
tion. Whether the absence of the testimony is caused by the
unwillingness of the Mexican authorities to furnish it, or by
the laches of the claimant, the duty of the board to regard the
jurisdiction of the court as sufficient and its proceedings
regular until the contrary is shown, remains unchanged.
"It remains, then, to inquire whether the cause of the cap-
ture and the circumstances under which it was made, as they
are to be adduced from all the evidence in the case, would,
under the law of nations, have justified a. condemnation before
a court of competent jurisdiction and whose proceedings were
regular. At the time the capture was made Mexico and Spain
were at war. The Spanish forces, after having been expelled
from every other portion of the Mexican territory, at that time
held possession of tlie castle of San Juan de Ulloa. The
United States, as a neutral nation, could claim for its citizens
only the rights which by the laws of nations neutrals hold in
relation to belligerents. The Spanish forces in the castle
could only obtain their supi)lies from the land by the per-
mission of the Mexicans, who had possession of the city of
Vera Oruz and of all the country around.
" It was an important object to Mexico to cut off the sup-
plies of her enemies in the castle and thus compel them to sur-
render. She had an undoubted right by the law of nations to
besiege the castle as well by sea as by land, and to treat as an
enemy whoever might attempt to enter it or carry anything to
the besieged. Tliis doctrine is laid down by Vattel, B. 3, sec.
117, as follows: 'All commerce is entirely prohibited with a
besieged town. If I lay siege to a town or only form a block-
ade I have a right to hinder anyone from entering and to treat
as an enemy whoever attempts to enter the place or carry any-
thing to the besieged without my leave.' Mexico asserted this
right, and by a decree of 8th October 1823 ^ the fortress of San
Juan de Ulloa is (was) declared to be in a state of blockade,'
and all communication witii the garrison and vicinity was de-
clared to be absolutely cut oft*. On the 20th December 1824
another decree was ])ublished by which the strict blockade of
the castle was continued and the provisions of the previous
decree were declared to be in full force. More than a year had
ehipsed from the publication of the first decree when the Sumn
was captured ' oft" the castle.' The evidence filed by the claim-
ant proves beyond a doubt that she sailed from the United
i
3888 INTERNATIONAL ARBITRATIONS.
States for the purpose of disposing of her cargo at the castle.
Her manifest 8i>ecified her destination to be * the Gulf of Mex-
ico,' and not any particular port. The protest of the master,
made before the United States consul immediately after the
capture, states that the vessel was *• bound on a voyage from
Baltimore to the castle of San Juan de Ulloa.' The same fact
was again asserted by the master in an affidavit which he made
at New Oilcans in March ISiio.
<^ Tlie claimant's counsel insists that the capture of the 8usan
was illegal, because, as he alleges, < she was captured out at
sea,' and not in the vicinity of the castle. This assumption is
not sustained by the testimony. Not one of the pai)ers filed
in the case contains such an allegation. The protest of the
master does not si>ecify the distance of the vessel from the
castle when she was captured. If the vessel had been cap-
ture<l ^ out at sea,' it is hardly to be presumed that the state-
ment of so important a fact would have been omitted in the
master's protest. But, besides this strong negative testimony,
the assumprion is disproved by the letter of the consul above
referred to, in which he says the Siutan was captured * off the
castle with ])rovisions.'
"There < an, then, be no reasonable doubt that the Susan
sailed irom Baltimore with a cargo of provisions for the castle
of San Juan de Ulloa, which was then in a state of blockade,
and that she was captured by a Mexican vessel of-war while off
the castle and attempting to violate the blockade.
" It is urged that, notwithstanding the decrees of blockade
before referi ed to, there was no actual blockade of the castle,
because there was not kept in the vicinity a sufficient maritime
force to enforce it. It is true the law of nations requires a
blockading power to keep a force sufficiently near the blockaded
l)ort ' to occasion an evident danger in entering.' The evidence
in this case does not disclose the extent of the maritime force
which Mexico kept in the vicinity of the castle. The board
has no right to presume, in the absence of testimony, that a
sufficient force to sustain the blockade was not kept there.
The claimant who seeks to invalidate the decision of the prize
court in Mexico upon this ground, should prove it. This he
has wholly failed to do. That the force which Mexico kept
there was sufficient to 'occasion an evident danger' to the
iSusan in entering, is sunicie.tly proved by the fact of her cap-
ture. It is also in evidence before the board that about that
k.
PRIZE CASES. 3889
time several captures of neutral vessels were made, on the
allegation that they were attempting to violate the blockade.
So far as the evidence upon this point goes, there is a decided
preponderance in favor of the position that Mexico kept as
large a maritime force in the vicinity of the cattle as was nec-
essary under the law of nations to give eifect to the blockade.
Besides, it is in evidence before the board that the Mexican
land batteries at Vera Cruz commanded the approach to the
castle, and that one vessel was sunk by them while discharg-
ing her cargo at the castle. Although the investment of a be-
sieged post or fortress by a land force may not be, technically,
a blockade, there can be no doubt of the principle that the be-
sieging force has the same right under the law of nations to
cut off supplies and to prohibit a trade with neutrals which is
possessed by a blockading squadron. The object in both cases
is the same — to force a surrender of the enemy by depriving
him of the facilities to prolong the contest which a trade with
neutrals might afford him; and the right to capture the prop-
erty of neutrals trading with the enemy under such circum-
stances, is undoubted in either case.
<^It is also insisted that the capture of the Susan was illegal
because she was not warned oii*. Tlie claimant has filed among
his papers an affidavit made in New Orleans in March 1825, by
the master and supercargo of the Susan, in which they state
that 'on their passage from Baltimore to the castle of San
Juan de Ulloa said vessel was not warned or ordered oft* by any
Mexican cruiser previous to being captured by the Anahuac,''
It is not essential to give validity to the capture of a neutral
vessel entering a blockaded port that she shall be warned off".
The fact of her bein<( warned oft* is but an evidence of notice
of the blockade, and the notice being j^roved aliunde is ecjually
effective. The facts (leveloi)ed by the evidence in this case
are sufficient to. justify the presumption that the fact of the
blockade was well known both to the owner and the master.
The blockade had then been proclaimed more than a year. The
proximity of New Orleans (where the owner resided) to Vera
Cruz, the frequent communication between the two places, and
the fact that the owner was extensively engaged in trade with
that port, forbid the conclusion that he was ignorant of the
blockade. He does not aver a want of notice in his memorial,
nor is it shown by the testimony. The aiiidavit of the master
and supercargo before referred to does not allege that they
were ignorant of the blockade.
3890 INTERNATIONAL ARBITRATIONS.
^^The English courtn of admiralty have decided that sailing
for a blockaded port, knowing it to be blockaded, is a breach
of the blockade from the departure of the vessel, and that she
may be legally captured wherever found. From a careful
examination of all the evidence adduced by the claimant, the
board is satisfied that nothing is proved which would justify
a decision that the Judgment of the prize court in Mexico was
in violation of the law of nations."
Memorial of J. W. Zacharie: Opinion uf MessrH. Evans, Smith, and
Paine, conimisHionerH, February 3, 1851, act of Congress of March 3, 1849.
<^This claim is similar in its essential fea-
Case of the '*Seott." tures to that growing out of the capture of the
schooner Susan, which has already been de-
cided by this board not to be valid, and must be disposed of
uj>on the principles which governed the decision of that case.
Upon tlie application of the counsel for the claimant, the board
lias very carefully reexamined the grounds ui)on which that
decision took place, and finds no occasion to reverse the judg-
ment to which it was then conducted.
*'The injury for which the indemnity is sought in the pres-
ent case was occasioned by the firing of the Mexican batteries
in the harbor of Vera Gruz upon the schooner [Scott], then ly-
ing at anchor near the castle of San Juan de Ulloa. This
occurrence took place in January 1825, when the castle was in
possession of some of the military forces of Spain, with which
nation Mexico was then waging her war of independence.
Spain had been before that trinc driven from all her posses-
sions in Mexico, cxcei)t this strong fortress, of which a small
body of her troops had retained possession for a period of more
than three years against the most strenuous ettorts of Mexico
to expel them. During a portion of that time very active
hostilities were kept up betwecMi the (lastle and the Mexican
batteries and forces on shore, and during other portions there
was to a considerable extent a cessation of active operations
and some degree of intercourse ai)pears to have been carried
on between the castle and the city. Peace was however by no
means concluded between the two (countries, and Spain lisul
not yet relin([uished her ])uri)()se of attempting the reconquest
of Mexico. During the same year slie made an unsuccessful
effort to relieve the castle and to invade the Mexican terri-
tory. It was not until late in the autumn of that year that the
Spanish troops in the fortress, liaving been reduced to the last
PRIZE CASES. 3891
extremity, were compelled to surrender. Niles's liegister of
December 31, 1825, says: 'General Coppinger, late of Florida,
commanded at San Juan de Ulloa at the time of its surrender,
and certainly held out as long as he could. Gats and rats had
been eaten to prevent starvation, and so reduced were the
means of subsistence that sentinels died at their posts while
under arms. More than four fifths of the garrison perished
from the scurvy.' Th^s extra(!t shows with what degree of vigi-
lance and ability Mexico had carried on hostilities against the
castle. Of the means which she employed to effect its reduc-
tion, some account is given by Mr. Ward in his book on Mexico,
vol. 2, p. 69. On the 11th of March 1825, after an absence of
about one year, Mr. Ward returned to Mexico, and says:
" ' From the moment that we approached the shores of Vera
Cruz an astonishing difference became visible in the state and
appearance of every thing around us. The castle was, indeed,
held by a Spanish garrison and the harbor closed in conse-
quence to foreign vessels, but the firing had long ceased,
the siege being converted into a blockade, in which a number
of Mexican schooners and gunboats were employed, while the
castle was occasionally supplied with fresh provisions by the
Spanish fiotilla from Havana. The island of Sacrificios, where
we again anchored, and which I had left a year before a barfen
and desolate spot, had been converted into a regular fortifica-
tion, under which the Mexican gunboats sought protection on
the approach of the Spanish fleet. Mocambo, too, had assumed
a formidable appearance.'
"These were the means which Mexico was then employing
and had been employing to compel the surrender of the gar-
rison.
" Of her purposes she had, as well by these means as by
her public declarations, given notice to the world. A decree
was issued on the 8th October 1823 declaring the castle of San
Juan de Ulloa to be in a state of blocka<le; and by another
decree of 20th December 1824. it was announced that the strict
blockade of the castle was continued, and all the provisions of
the previous decree were declared to be in full force. The
works upon Sacrificos and Mocambo, both in the immediate
vicinity of the castle and designed to aid in its reduction, were
erected in 1824; and every indication of a more active effort on
the part of Mexico to compel the garrison to surrender appears
to have been given.
" In such a state of things the schooner Scott was cleared
5027— VOL. 4 42
i
3892 INTERNATIONAL ARBITRATIONS.
from New Orleans for Vera Cruz, aud sailed on the 20th day
of December 1824. The claimant insists that she undertook a
lawful voyage and was honestly bonnd for the Mexican port of
Vera Cruz and not to the castle of San Juan de Ulloa; and he
avers that she was fired upon and sunk by the Mexican bat-
teries from an ^ idle suspicion ' that she intended to trade with
the castle. This is a question of fact necessary to be in the
first place clearly settled. The castle of San Juan, it is under-
stood, entirely commands the harbor of Vera Cruz, and foreign
vessels could not therefore with safety enter that i>ort. Indeed
it is well known that, owing to the possession of the fortress
by the Spaniards and the hostilities between it and the city,
Vera Cruz became in a great degree deserted, and all commer-
cial business was transferred to Alvarado. (Ward's Mexico,
vol. 2, pp. 6-7.) But in the opinion of the board there is very
decided proof not only that it was the intention of the schooner
to trade with the castle, but that the fact of trading had ac-
tually commenced at the time the firing was oi>ened upon her
by the Mexican batteries. The captain of the vessel upon his
return to New Oxleans, on the 3rd day of March 1825, noted a
protest, in which he stated that ^ he had experienced loss and
damage on his outward passage by an attack on said vessel
from the forts of Vera Cruz soon after she anchored near the
castle, the particulars of which he would make known at more
leisure,' and on the 8th of the same month he appeared with
his mate and two of his crew and extended his protest, of which
the following is an extract:
*' ' Nothing material occurred on the outward passage afore-
said, until the 4tli of January last, when the weather being
cloudy at 3.30 p. m. saw the castle of San Juan de Ulloa; at
4.30 p. m. got a pilot from that fortress; 5.20 p. m. came to
anchor, etc. Got the boat out and the captain went on shore.
At 6.40 the boat returned and brought off two launches from
the castle for cargo. Ladened these hiunches and sent them
ashore, when the fort at Vera Cruz fired one shot at the said
schooner, which passed without doing much damage.'
" It is thus established beyond all controversy that the ves-
sel was actually engaged in trade with the castle at the time
she was fired upon by the Mexican batteries. Two launches
had been loaded from her and sent to it before the firing com-
menced. Nor is there any reason to doubt that the attack,
resulting in great injury to the vessel and cargo, was induced
by this act of trading.
PRIZE CASES. 3893
^^ It is urged tbat the cargo, a» exhibited by the mauifests,
was not suited to the wants of the garrison, and it is hence
inferred that the voyage was not in fact undertaken to the
fortress. The proof is too clear to admit of any doubt upon
the subject, even if the manifests were entitled to the most
implicit confidence. Besides, it is well-known that many car-
goes were lauded at the castle, intended to be smuggled into
the city in violation of the revenue laws of Mexico. This was
especially the case prior to the decree of 8th October before
referred to. Mr. Taylor, the consul of the United States at
Vera Cruz, in a letter to the Department of State under date
of April C, 1823, says: *The fort, too, is turned into a place of
deposit or trading house, where cargoes are landed, deposited,
or sold, and from thence smuggled into Vera Cruz.'
^^It being established to the entire satisfaction of the board
that the vessel and cargo at the time of the injuries com-
plained of were actually engaged in carrying on trade with
the castle of San Juan de Ulloa, then held by the Spanish
arms, the question next to be decided is whether this was a
violation of the belligerent rights of Mexico. It has been urged
very strenuously on behalf of the claimant that it was not
such violation; that the blockade of the castle was a mere
paper blockade, not binding upon neutrals; that Mexico had
not sufficient power to enforce itj or to cause it to be respected;
that the schooner liad never been warned off, without which it
is contended that she was not liable to interruption.
"A blockade is understood to be, in strictness of language,
applicable only to i)orts, harbors, or coasts, accessible by sea
for commercial purposes. Its object is to harass the enemy by
obstructing or annihilating his commerce, and thus to induce
him to conclude a treaty of peace. It does not contemplate a
surrender of the port or place blockaded, and is not to be re-
garded as a mere military operation. * There is an important
distinction,' says Duer on Insurance, vol. 1, p. 657, 'between a
maritime blockade and a military siege. The sole object of
the blockade is to distress the enemy by the suspension of his
commerce, it does not generally look to the surrender or re-
duction of the ])lockaded port, nor does it imply the commis-
sion of any hostilities which the inhabitants are necessarily
required to repel. On the other hand, the object of the mili-
tary siege is to reduce the place, whether by ca[)itulation or
otherwise, into the possession of the besieging power.' There
i
3894 INTERNATIONAL ARBITRATIONS.
can be little doubt that the purpose of Mexico, in it« operations
against the castle, whether by sea or land, was to effect its
reduction. It was a military fortress, and not a commercial
port. The suspension of its commerce or trade, if it had any,
was in no way calculated to injure Spain, or to induce her to
enter into a treaty of peace. The object of Mexico was to
wrest from her enemy a strong and commanding military post,
the possession of which enabled her to prolong the contest,
and afibrded facilities for renewed attempts at invasion and
subjugation. Mexico had the unquestionable right to effect
this important object in any mode she deemed suitable, con-
forming only to the law of nations, and the usages of modem
warfare. She had the right to exclude all intercourse or com-
munication whatever with the castle. The mode adopted ap-
pears to have been taken upon deliberation, and that it was
entirely successful has been already shown by the extracts
from Niles's Kegister before given. The following extract
fron) roiusett's Notes on Mexico, p. 23, shows the purpose and
the mode of accomplishing it which Mexico had in view, if fur-
ther proof upon that subject be necessary. Mr. Poinsett, on
his way to the city of Mexico, was in Vera Cruz in October
1822, and, giving an account of an interview he had with
General Santa Anna, then governor of the city, says: ^The
governor took ine aside to talk of his plans for taking the
castle. He proposes to blockade it by water, to construct a
battery on each extremity of the harbor to prevent the en*
trance of shipi)ing, and to have I don't know how many mor-
tars arranged behind the city to shower shells into the castle.'
These plans appear to have been carried into execution; the
decree of 8th October 1823 was promulgated, and the castle
was eventually compelled to surrender.
''In the opinion of the board the principles of law applica-
ble to merely commercial blockades do not apply to a state of
things like this. The entire operation against the fortress
must be regarded as a military one having in view and adapted
to effe(;t the reduction of a strong military post.
"It is said that there is no proof in the case showing that
Mexico had the power to enforce the blockade. It might be
sulhcient to say that there is no proof to the contrary. But
the argument seems to assume that the board is confined to
the proofs which are presented by the claimant himself. It
must be recollected that the proceedings before the commission
PRIZE CASES. 3895
are altogether ex parte. No adverse party is present or has
opportunity to be heard. If the board were to be confined to
the dainiant's own proof, it wouM be quite easy to sustain any
claim whatever. Indeed, it is urged in the case of the Susan
that when a capture is proved a sufficient claim is made out,
unless it be shown by Mexico that there is justifiable ground
for it; and not only so, but that Mexico must go still further
and show a regular condemnation by a court of competent
jurisdiction; and the rules of evidence applicable to trials at
common law between individuals are cited to establish these
positions. The board does not yield to this argument. Each
claimant must establish every fact essential to the support of
his claim. If the ground of reclamation be that a capture or
a condemnation was unwarrantable, that must be established.
There can be no such distinction here as exists in trials be-
tween individuals of a prima facie case sufficient to put the
adversary on his defense, for the reason that there is no ad-
versary. Neither Mexico nor the United States, who has
assumed the obligations of Mexico, has the opportunity of
repelling the proofs submitted by claimants except so far as
public documents, furnished from the archives of the govern-
ment, may be regarded as affording such testimony. The
board does not, therefore, consider itself as limited to the pa-
pers which the claimants deem it for their interest to present
to its consideration. Public events, facts, or occurrences of
general notoriety, published accounts and documentary records
are all suitable and i)roper to be weighed as evidence in their
bearing upon particuhir cases.
" Judging from the evidence furnished by these and similar
sources, the board is far from coming to the conclusion that
Mexico was so deficient of means to enforce her decree of
blockade that it was not obligatory upon neutrals. The har-
bor and the ac(;ess to the castle were entirely commanded by
the land batteries, while the gunboats and schooners of war
before spoken of were sutUcient to capture all commercial
vessels hovering in the vicinity.
^'ThCvSe efforts and ])reparations on the part of Mexico must
have been notorious to all persons trading in that quarter, and
whoever undertook a voyage to the castle must be held to have
entered upon it with full knowledge of all the hazards to which
it was ex])Osed. Indeed, there is evidence before the board,
filed in another case by the present claimant, tending to show
3896 INTERNATIONAL ARBITRATIONS.
that the existence of the blockade was so well known in New
Orleans as to be guarded against by insurers, in policies of
vessels bound to Vera Cruz. An opinion given by the
supreme court of Ijouisiana in May 1837, in a suit upon a
policy of insurance on the schooner Constitution and her cargo,
is among the papers filed by the present claimant in that case.
The court say: 'This action is brought on two policies of in-
surance, one on the schooner Constitution and the other on her
cargo, from the port of New Orleans to Vera Cruz. Both
vessel and goods are warranted to be American, and that the
former shall not force the blockade.' The Constitution sailed
upon her voyage in June 1824, and was soon after captured
upon the allegation that she was bound for the castle. This
capture, and the grounds upon which it was made, must have
been known at New Orleans. The * blockade' spoken of in the
policy could be no other than the blockade so-calle<l of the
castle; and when it was known that vessels were actually
seized and captured on pretense that they were bound to the
castle, tliere is little ground for the argument that it was in-
cumbent on Mexico to warn oft* vessels thus actually employed,
before she could lawfully interrupt them.
*'In the argument addressed to the board for a reexamina-
tion of the case of the Susan, it is said that the board had fallen
into error in supposing that it had been admitted that the
vessel had ever been condemned, and if so that it was by a
prize court of competent jurisdiction. The memorial in itself
does not, it is true, make that distinct admission, but the letter
of Messrs. Taylor, Sicard vV: Co. of 9th January 1825 to the
claimant says, speaking of the Susan: 'Vessel and cargo con-
demned and sold — a very summary process. We are ignorant
of all the other facts save that of her capture and condemna-
tion.' When therefore the memorialist asserts that 'it is
understood' vessel and cargo were condemned, and files a let-
ter from his correspondents containing the statement above
(pioted, the board did not suppose it would be going too far to
consider the facts as admitted.
" But it is further urged that, if condemned, it was not done
by a court of competent jurisdiction, and that the proceedings
were not regular. And it is urged that Mexico at that time
had no established courts competent to adjudge upon questions
of prize. The board does not find any suflicient proof of these
allegations. The letter of Messrs. Taylor & Co., before referred
PRIZE CASES. 3897
to, says: 'Our W. T. has just beeu uotifled of the condemua-
tion of the McDonough^s cargo by the Mexican tribunal of the
place, from which decision he appeals to the supreme court of
Mexico.' There is no intimation that this was not a regular
proceeding and a court of competent jurisdiction. It appears
also in the case of the Constitution that proceedings were com-
menced and prosecuted before the same or a similar tribunal,
from whose decision an appeal was also taken ; and that these
defenses were set up and conducted by Mr. Taylor, the consul
of the United States at Alvarado. The house with which Mr.
Taylor was connected were the correspondents of the claimant,
and communicated to him intelligence of the capture of the
Susan. Is it reasonable to suppose that Mr.Zacharie did not
reply to that letter! That he did not apply for and obtain
information of all the circumstances connected with the occur-
rences! That if there had been no regular proceedings, no
condemnation, no proper court, he would not have been fully
informed of it! Did all correspondence between the claimant
and his commercial friends in reference to this matter cease
with that first communication! It is wholly impossible to
admit any such inferences. Since the organization of this
board, it is true, the claimant has endeavored to obtain from
Mexico the records of the proceedings in the case, and they
have not been furnished. But is the board thence to infer
that there was no court and no proceedings! These occur-
rences took place twenty-six years ago; and since that time
Mexico has undergone many revolutions and suffered much
civil commotion. Is it unreasonable to suppose that her
omission to furnish documents called for may be owing to
a much more excusable cause than has been attributed to
her? That her archives and ^records may have been rifled
and destroyed in some of the many scenes of violence and
anarchy through which she has passed!
*' If the injuries now complained of had in fact been sus-
tained in the manner now stated, and without any justifiable
cause on the part of Mexico, it is impossible to account for the
long neglect of the claimant to seek the interposition of his
own government, or to take any steps for obtaining redress.
These claims were not presented to the joint commission under
the convention of 1839, nor does it appear that they were ever
in any way brought to the notice of the Government of Mexico.
Mexico has therefore never had the opportunity of answering
i
3898 INTERNATIONAL ARBITRATIONS.
the allegations or repelling the proofs npon which they rest.
Nor were they brought to the notice of the Government of the
United States antil 1845. The motive for presenting them at
that time was probably that they might be in condition to be
presented to a new commission, if one shoald be provided for,
with similar provisions to that of 1839. The claimant, it is
true, addressed a letter to Mr. Livingston, then a member of
Congress, in January 1825 upon the subject, but it does not
appear to have ever been communicated to the government or
made the ground of reclamation against Mexico. The consul
of the United States, Mr. Taylor, also wrote the letter before
referred to, stating the fact that the Scott had been fired upon
by the Mexican batteries. But he only alludes to it as being
the occasion of the renewal of hostilities between the city and
the castle, and not as an aggression upon the rights of neutrals
or an act unwarranted by the circumstances of the case. Is it
reasonable to suppose that, if the wrongs complained of had
been inflicted in the wanton manner stated, the claimant would
have been so long silent? That the consul, of whose zeal in
behalf of An^erican interests there the board has many proofs,
would not have exerted himself with his usual energy? Is it
not rather more reasonable to conclude that through his cor-
respondents there, wlio had every motive to defend his rights,
he was fully informed of all that had taken place, and was
assured that there was no ground upon which a reclamation
through his own govei lunent could be sustained I The claimant
assigns reasons why these claims were not presented to the
joint commission, but in the opinion of the board they are quite
insufficient to impair the very strong presumption growing out
of his total omission to take any measures for obtaining redress
at the time of the occurrences complained of, and for so long a
period afterward.
'* Exception is also taken, in the case of the Susan, to the
conclusion which the board came to — that she was taken ^near
the cm tie ^ — and the assertion is reiterated that she was* cap-
tured at sea. It appears by the protest of the master that the
vessel was first sent into the ' port of Sacrificios,' which was
nothing more than a place of shelter for the Mexican gunboats
under the batteries there erected. If taken at sea, it is by no
means probable that she would have been sent there, but
directly to Alvarado, where she was finally taken. * The consul,
Mr. Taylor, states in the letter referred to in the former opinion
PRIZE CASES. 3899
of the board, that she was taken ' off the coHtle^^ a phrase which
implies that she was in its immediate vicinity.
^< Without further extending this opinion, or enlarging apon
other topics presented in the arguments of counsel, the board
is constrained to adhere to the decision already made in the
case of the Susan, and to decide that the claim set forth in the
memorial of J. W. Zacharie for injuries to the schooner Scott
and cargo is not valid.''
Opinion of MeHsre. Evans, Smith, and Paine, February 14, 1851, act of
Congress of March 3, 1849.
" Several claims growing out of the capture
^ ^ , ^ of the schooner Julius Caesar were presented
to the joint commission under the convention
of 11th April 1839, in regard to which a difference of o])inion
existed between the American and Mexican members of that
board, and they were referred to the umpire and by him re-
turned without a decision thereon. These claims are now pre-
sented to this board, and the following facts are, in its opinion,
established by the documents and proofs which were submit-
ted to the umpire.
*'The schooner «/Mhw« Cwsar, owned by citizens of the United
States, laden with merchandise also belonging to citizens ot
the United States, having been regularly cleared from the port
of New Orleans, sailed on the 12th day of April 1837, with
several passengers on board, bound to Brazoria, Texas. When
about four days out, off the mouth of the Sabii^e River, distant
about seven miles, she was captured by the Mexican brigof war,
General Urrea, the crew and passengers, with few exceptions,
were taken on board the Mexican ship and contined in irons, a
prize crew was put on board the schooner, and both vessels
made sail for Matanioras, where they arrive<l. The passengers
and crew of the schooner were taken to prison, where they were
confined for about one month, were treated with great cruelty
and indignity, and plundered of most of their personal effects.
The vessel was condemned, together with her cargo, upon
pretense of having violated a municipal law of Mexico, and
was disposed of for the* benefit of the captors.
"The Mexican commissioners at tirst attempted to justify
the capture of the vessel, and also that of the schooners
Louisiana and Champion, which took place about the same
time, upon the ground that they were at the time violating a
blockade declared by Mexico of the coast and ports of Texas.
3900 INTERNATIONAL ARBITRATIONS.
This was not the reason, however, assigned for the capture at
the time, nor upon which the condemnation took place, and wa«
manifestly untenable for several causes. Ist. The pretended
blockade had not been declared and made public a sufiicient
length of time to furnish a presumption that the captured ves-
sels could have had notice of it. 2nd. It was not enforced by
a sufficient blockading squadron to cause it to be respected.
3rd. The vessels were not warned oft*, as they should have been,
before their capture could be justified. 4th. They were cap-
tured on the high seas before they reached the degree of longi-
tude which was the eastern limit of the blockaded territory.
** It is quite unnecessary to go into any further detail of the
circumstances of the capture of these vessels to show its ille-
gality, inasmuch as it appears that the Government of Mexico
has itself admitted it. Ii\ a dispatch from Mr. Forsyth, Secre-
tary of State, to Mr. Martinez, the Mexican minister to this
government, dated November 27, 1837, it is said: * He [Mr. F.]
would remark, however, that as the illegality of the capture of
the JuliuH C(Vifar, Champion^ and LouiHiana^ for which indemni-
fication was claimed in the note of the undersigned above
referred to [note of May 27, 1837] hm since been admitted^ the
papers sent herewith are intended to show the extent of the
losses sustained.' It does not appear that the fact thus as-
serted by Mr. Forsyth was ever denied by the Mexican minis-
ter or his government, and it may therefore be safely taken as
true that the cai)ture of these vessels was a wrong inflicted
upon the owners and others interested therein, for which Mexico
is justly responsible. ♦ * *
^> In the opinion of this board the claims set forth in the
memorials * * * are valid, and the board admits them
accordingly.''
Opinion of Messrs. Evans, Smith, and Paine, commissioners under the
act of Congress of March 3, 1849.
" The schooner Champion, belonging to eiti-
Caseof the*'Cham- ,. ^, ^j .. i o/ 4. -^.i v
. „ zens ot the United States, with a cargo of
merchandise and several passengers on board,
while in the prosecution of a voyage from New Orleans to the
port of Matagorda, in Texas, was captured upon the high
seas by a Mexican squadron under the command of Commo-
dore Lopez, in latitude 27^ 10' N., and longitude 93^ 27' W.,
on the first day of A])ril 1837. A prize crew was put on board,
and under convoy of the Mexican brig of war, General Urreay
PRIZE CASES. 3901
she was taken to Matanioras. The crew and passengers were
confined in prison and treated with great cruelty. The vessel,
cargo, and personal effects of the passengers and crew on board
w(Te all, either by plunder or pretense of confiscation, appro-
priated to the captors. The circumstances of the case are pre-
cisely like those attending the capture of the schooner Julius
Ccdsar^ and, for the reasons set forth in the opinion of the board
in thsit case, the board is of opinion that the capture of the
Champion was an illegal and unjustifiable act, for which the
Government of Mexico is responsible."
Opiuion of MessrH. Evans, Smith, and Paine, Jane 14, 1849, conimiK-
Hionors under the act of Congress of March 3, 1849.
"The schooner Louisiana^ in the prosecu-
**^? . *„ ^" tion of a lawful voyage from New Orlt;ans to
, was captured on the 4th April 1837
by a Mexican vessel of war and ordered to Matamoras. She
was laden with a cargo of tobacco, flour, and other provi-
sions, designed for sale in Texas. Before reaching the port
to which she was ordered by the captors she was retaken by
the United States sloop of war Natchez and sent back to New
Orleans. Wliile in the possession of the Mexican caj)tors some
portions of the flour and provisions on board were taken and
consumed by them, and in consequence of their unskillfulness
as seamen, or from the want of proper attention, the schooner
leaked badly and sixty- three bales of tobacco were so injured
as to be wholly worthless. • • • por the reasons set
forth in the opinions of this board in the cases of the Julius
Caesar and the Champion^ and from the admission by Mexico
referred to in those opinions that this capture was also illegal
and unwarranted, this board is of opinion and does decide
that the claim for losses and injuries sustained by * * *
the capture of the schooner Louisiana is valid and allows the
same accordingly."
Opinion of Messrs. Evans, Smith, and Paino, commissioners, June 15,
1849, under the act of Congress of March 3, 1849.
A kind of sequel to the foregoing claims
Caaeof the "Essex." <>n account of the seizure of the Chavipion^
Louisiana,, and Julius Cwsar, was the claim
of Thomas B. Cotterell, owner and master of the Ameiican
schooner Efiscr. This vessel was at Brazos, the port of Mata-
moras, in April 1837, partially laden with a cargo for Boston,
3902 INTERNATIONAL ARBITRATIONS.
when the General Urrea was captured by the United States
sloop of war Natchez because of the former's seizure of the ves-
sels above mentioned. In the excitement growing out of the
capture of the Mexican man-of-war, the American vessels then
at Brazos were prohibited from departing, by order of General
Bravo, then military commander of that department. Captain
Cotterell alleges that the Ensex was detained thirteen days,
when, in consequence of the low stage of water upon the bar,
it was difficult to cross, so that in crossing she struck heavily
several times, receiving considerable injury. He claimed for
demurrage, for the injury to the hull and sails of the vessel,
and for other expenses incurred. It seems that the vessel,
though left in the po^ession of the master and crew, was
forcibly stripped of her sails with a view to prevent her de-
parture. In regard to this claim, the commissioners under
the act of 1849 said :
" The circumstances attending the capture of the General
Urrea and the occasion which led to it are matters of public noto-
riety, and are proved in several cases pending before the board.
It led to discussions between the two governments, which leil
to the restoration of the vessel to Mexico, although its capture
was justified by the [Tnited States Government, and to a dis-
tinct admission by Mexico that the first aggression had been
committed by the General Urrea by the capture of three Ameri-
can vessels, the Champion^ the LouManOy and the Julius Cassar^
without cause. The board is therefore of opinion that under
all the circumstances the Mexican authorities had no just
occasion to detain the American vessels then in port by reason
of the capture of the Gen, UrreaJ^
''The bark Hiawatha; Miller & Mosman,
"® ° tha." ^^* ^'^^' ^"^ I^^zekiel McLeod, assignee. No. 399,
claimants for the vessel; Watkins & Leigh,
No. 400; Dalgetty, Du Croz & Co., No. 401 ; William T. Mar-
shall, No. 402, and the executors of Charles McEwen, No. 452,
chiimants for cargo.
•'Tlie IJiawatha was captured by the United States blockad-
ing tieet, in Hampton Eoads, at the mouth of the James Kiver,
on the 20th May 18()J, in attempting to pass through the
blockading fleet on an outward voyage from liichmond, Va,,
for Liveri)ool. She was taken into the port of New York, and
vessel and cargo there libelled in the United States district
court, and condemned. (See report of the case in that court,
Blatchford's Prize Oases, p. 1.) On appeal, first to the circuit
PRIZE CASES. 3903
court and thence to the Supreme Court, the decree of the dis-
trict court was affirmed, the opinion of the Supreme Court
being delivered by Mr. Justice Grier, and a dissenting opinion
being read by Mr. Justice Nelson, in which Cliief Justice
Taney and Justices Catron and Clifford concurred. (See
report in the Sui)reme Court under title of *The Prize Cases,'
2 Black, 635 to 699.)
**This was one of the first vessels captured during the war,
and one of the first upon the validity of whose capture adjudi-
cations were had in the prize courts of both original and
appellate jurisdiction. In the Supreme Court, where the case
was argued in connection with those of several other vessels
captured about the same time, and involving to some extent
the same general principles, the question of the validity of the
blockade established under the President's proclamations of
19th and 27th April 1861 (12 Stats, at L. 1258, 1259), and that
of the liability of the property of persons domiciled within
the insurrectionary States to capture on the high seas as
enemy's property, were ehiborately argued. The majority of
the court sustained the validity of the blockade and the right
of capture of property of citizens of the insurrectionary States
upon the high seas as enemy's property. The minority of the
court held ' that no civil war existed between the United States
and the States in insurrection till recognized by the act of
Congress of i;3th July 1861 (12 Stats, at L. 255); that the
President of the United States does not possess the power
under the Constitution to declare war or recognize its existence
within the meaning of the law of nations, which carries with
it belligerent rights, and thus change the country and all its
citizens from a state of peace to a state of war; that this
power belongs exclusively to the Congress of the United
States, and, consequently, that the President had no power to
set on foot a blockade under the law of nations; and that the
capture of the vessel and cargo in this case and in all cases
before us in which the capture occurred before the 13th July
1861, for breach of blockade or as enemy's property, are illegal
and void, and that the decrees of condemnation should be re-
versed, and the vessel and cargo restored.' (2 Black, 698, 699.)
"The case of the Biawatha was this: She sailed from Liver-
pool on the 11th February 1861, with a cargo of salt for
Richmond, Va. ; thence to take cargo back to Liverpool. She
passed Hamx)ton lioads, at the mouth of the James Eiver, on
3904 INTERNATIONAL ARBITRATIONS.
the 23d April aud arrived at City Point, the port of Richmond,
a few miles below that city on the James River, on the 29th
April. She completed tlie discharge of her outward cargo on
the 10th May; immediately commenced lading with her return
cjir|?o, consistinjjf principally of tobacco, and completed this
lading on the 14th or 15th May. On the 16th she weighed
anchor and attempted to go to sea without pilot or steam tug,
but was prevented by head winds. On the 17th a tug at-
tempted to take her out of harbor, but was prevented by the
breaking of the towline. On the 18th she was taken in tow
by another steamer and towed down the river to within about
twenty miles of Hampton Roads. From this point she floated
down with the tide toward the Roads, and on the 20th was
boarded by an officer from a United States blockading vessel,
who endorsed upon her register this notice:
** ' This vessel (the Hiawatha) has been boarded by the United
States blockading stjuadron, and warned not to enter any port
in Virginia or south of it.
"*S. H. Brown,
*' ' Bloclading Officer, United States Steamer Star.
"<May 20, 1801.'
" On the same day, and while still floating with the tide in
Hampton Roiuls, she was seized by the United States war
steamer MimwHota, and thereafter taken into port and libelled,
as above recited.
'* President Lincoln's proclamation establishing a blockade of
the ports of Virginia was issued 27th April 1861 (12 Stats, at
L. 1259). Under that procliinuition the blockade of the ports
of Virginia upon the Chesapeake Hay and the James River
was actually established by Commodore Peudergrast, and a
proclamation made of same on the 30th April. On the 8th
May Lord Lyons communicated to Mr. Seward a letter from
the British consul at Richmond, dated otli May, in which the
consul had said to Lord Lyons:
" ' There are i)arties here about to load the British ship
Hiawatha at City Point for Liverpool, under the impression
that she will be allowed free egress by the blockading squad-
ron. 1 have told i)ersons who are here representing the
owners of the ship that I see no ditliculty to the ship leaving
in ballast; but to this they will not consent, as the ship came
here expressly from Liverpool at a nominal freight to load a
remunerative cargo back.'
" Lord Lyons stated to Mr. Seward the hardship of the case
PRIZE CASES. 3905
of the Hiawatha, in case she should be compelled to return
home in ballast in consequence of the blockade, of which, of
course, her owners could have had no knowledge when they
sent her out, and submitted the case for the consideration of
the Government of the United States, requesting an early
answer.
" Mr. Seward answered on the 9th May, enclosing a letter
from the Secretary of the Navy, in which he said :
^< < Fifteen days have been specified as a limit for neutrals to
leave the ports, after actual blockade has commenced, with or
without cargo, and there are yet remaining five or six days for
neutrals to leave. With proper diligence on the part of per-
sons interested I see no reason for exemption to any.'
"Lord Lyons again wrote Mr. Seward on the 9th May,
acknowledging the recteipt of Mr. Seward's letter and saying :
" ^ In order to avoid all possible mistake with regard to the
Hiawatha, as well as to future cases of the same kind, I ven-
ture to request you to inform me whether I am right in con-
cluding, from the statement just quoted, that the date of the
shipment of the cargo is immaterial, and that vessels leaving
the i)ort8 before the expiration of the fifteen days will be
allowed to proceed with their cargoes, whether such cargoes
were shipped before or after the actual beginning of the eft'ect
ive blockade.'
"This letter was answered by Mr. Seward on May 11, enclos-
ing another letter from the Secretary of the Navy as follows :
" ' In answer to Lord Lyons's letter of the 9th instant, I have
the honor to inform you that neutral vessels will be allowed
fifteen days to leave port after the actual establishment of the
blockiule, whether such vessels are with or without cargoes,'
" Lord Lyons responded to Mr. Seward on May 11, thanking
him for his prompt information, reciting the correspondence,
and saying:
"^I have consequently instructed Her Majesty's consuls
to advise masters of British vessels that they are at liberty to
take cargo on board as well after as before the commencement
of the blockade, and that they will be allowed fifteen days to
go to sea, whether with or without cargoes, and whether their
cargoes be shipped before or after the actual commencement
of the eft'ective blockade.'
"On the same day Lord Lyons sent to the British consuls
at Kiclnnond and other ports a circular, as follows:
" 'Neutral vessels will be allowed fifteen days to leave port
after the actual commencement of the blockade, whether such
vessels are with or without cargoes, and whether the cargoes
39^)6 IirrEBNATIONAL ARBITRATIOXS.
were Kbi[)[»eil l>efore or after the commencement of the block-
ade.'
^^ He alHr> Kent on the same day a dispatch to Rear- Admiral
Sir A. Milne, of Her Majestj^s navy, enclosing, with other
dcK'umentM, c^>[)ieK of the proclamation of the President of
A[)ril 27, of the notice of blockade by Commodore Pendergrast
of April 3(1, and Haying:
^^ ^ The general result of inquiries made by me or other for-
eign ministers here as to the manner in which the blockade
will l>e conducted ap]>ears to be—
^^^1. That the date of the commencement of the blockade
in each locality will be fixed by the issue of a notice by the
commanding officer of the squa<lron appointed to blockade it.
It does not, however, appear to be intended that such notice
shall bi* officially communicated to the governments of neatral
nations or to their representatives in this country.
'* ' 2. That fifteen days from the beginning of the eflfective
blcKrkade will be allowed in every case for neutral vessels
already in jmrt to put to sea.
"*Tliat until the fifteen days have expired, neutral vessels
will be allowed to come out with or without cargoes, and
whether their cargoes were shipped before or after the actual
conunencenient of the blockade.
"*4. That, except in the last-mentioned particular, the ordi-
nary rules of blockade will be strictly enforced.
'^'5. The armed vessels of the neutral stiites will have the
right to enter and depart from the blockaded ports.
"'1 continue to be of opinion that, provided the blockade be
effective and be carried on in conformity with the law of
nations, we have no other course, in the absence of ijositive
instructions from Iler Majesty's government, than to recog
nize it.'
**In the decision of the cause in the district court. Judge
Hetts expressed the opinion that the correspondence between
Mr. Seward and Loi d Lyons did not constitute any relaxation
of the general rule limiting the right of departure of neutral
vessels from a blockaded port to sucli cargo as had been laden
before receiving notice of the blockade; so that, if the Hia-
iratha had departed within the fifteen days allowed for de-
parture after the establishment of the blockade, she would not
have been entitled to take out the cargo laden after knowledge
of theblo(!kade(Hlatcliford'8 Pri/.e Oases, p. 20). The Supreme
Court, however, distinctly overruled Judge Betts ui)on this
point, saying:
'^* After a careful examination of the correspondence of the
State and Navy Departments, found in the record, we are not
PRIZE CASES. 3907
satisfied that the British minister erred in the eonstraction he
put upon it, which was that a license was given to all vessels
in the blockaded ports to depart with their cargoes within
fifteen days after the blockade was established, whether the
cargoes were taken on board before or after the notice of the
blockade. All reasonable doubts should be resolved in favor
of the claimants. Any other course would be inconsistent
witli the right administration of the law and the character of
a just government.'
^^The British consul at Eichmond gave to the master of the
Hiawatha, on the 15th May, a certificate stating that, accord-
ing to the best information attainable by him, the effective
blockade at the mouth of the James River began on the 2d
May. After the capture of the vessel correspondence ensued
between Lord Lyons and Mr. Seward, in which Lord Lyons
earnestly recommended the case of the Hiawatha to the favor-
able consideration of the United States Government, saying
that it appeared Hhat the master of this vessel was innocent
of any intention to break the blockade, and that his not having
passed the blockading squadron earlier was due to erroneous
information or unavoidable detentions.' He also called atten-
tion to the cases of the Haxall and the Octavia, and expressed
the hope that the Government of the United States would be
disposed to extend to the Hiawatha the same favor which had
been shown to those vessels.
"In another letter to Mr. Seward, Lord Lyons said:
" ^ I do not, of course, consider myself competent to make
any comments upon the decision of Judge Betts on questions
of law; nor do 1 ground my present application upon legal
considerations at all. My desire is, in conformity with the
learned Judge's own suggestion, to obtain relief for the owners
of the Hiawatha by an appeal to the equity and indulgence of
the Government of the United States.'
'^And again :
"*That, by giving relief to the memorialists, the United
States Government would evince a spirit of comity and gen-
erosity which would be highly appreciated by the government
of iler Majesty.'
" In the cases of the Tropic Wind, the Hawaii, and the
Octaviaj those were vessels cai)tured about the same time with
the Hiawatha, and under similar circumstances had been re-
leased by order of the government, on the application of parties
interested or their respective governments, the Tropic Wind
5627— VOL. 4 43
#
3908 INTERNATIONAL ARBITRATIONS.
after judgment of condemuation, and the Raxall and Octavia
before judgment.
<<In cases No. 400 and 401, the memorials failed to show the
respective claimants the owners of the portions of the cargo
claimed by them, but showed those portions, respectively, to be
the property of one David Dunlop, a resident of Petersburg,
Virginia, who was shipping them to the claimants in perform-
ance of executory contracts between him and the respective
claimants for that purpose.
^<In the case of Wm. T. Marshall, No. 402, the memorial
showed that the claimant was, at the time of the captare,
domiciled in Richmond, Virginia.
<< Demurrers were interposed in those cases, specifying these
respective grounds.
^<In the case of McEwen's executors, No. 452, the proofis
showed the testator domiciled at Eichmond down to about the
time of the capture; but about that time, the proofs failing to
show whether shortly before or shortly after, he returned to the
domieil of his nativity in Great Britain, where he ever after
remained until his death.
''On the part of the claimants it was con-
Aigomen or e ^^^^^^ th'dtj irrespective of the strict rule of
prize law applicable to the case of the Ria-
watha, the case was one where in 'justice and ecjuity' the
claimants were entitled to indemnity, being without inten-
tional fault, and, morally, at leant, innocent of any intention to
violate the blockade, or do any illegal or prohibited act; that
the master of the vessel had used the utmost diligence in lading
his vessel within the time which he was informed he was en-
titled to consume in lading it, and had been prevented from
reaching Hampton Koads within the time limited by causes
beyond his control; that he ought not to be made to suffer for
the accidents that had deprived him of the services of a pilot
and the aid of steam, nor for the winds that retarded the
progress of his ship at sea, nor by reason of the master's
failure, in the emergency of an unexi)ected war, to understand
the exact legal significance of proclamations of the President,
and the legal conse<iueuces of blockade; that at the time of
the capture no war existed between the United States and the
Confederate States by virtue of which the blockade of the
Confederate ports could be lawfully established; that no sndh
war could be taken as existing until recognized by the act of
PRIZE CAS£8. 3909
Oon^ess of 13th July 1861 ^ that, conseqaently, the President
had no power to set on foot a blockade of the ports in question
onder the law of nations prior to the 13th ^Joly 1861; that the
capture of the Hiawatha and her cargo, whether for breach of
blockade or as enemy's property, was illegal and void, and
that by the terms of the President's proclamation the vessel
was entitled to a warning indorsed on her papers by an officer
of the blockading force, and was not liable to capture except
for an attempt to leave port after such warning.
^<As part of his argument, the counsel for the claimant cited
and adopted the dissenting opinion of Mr. Justice Nelson in
< The Prize Cases ' (2 Black, 682). He cited also the case of the
Neptunus, 3 Bob. 110, 173, and Medeiros v. Hillj 8 Bing. 231.
<<On the part of the United States it was
"^tld Btatei contended that, as a matter of fact, war actu-
ally existed between the United States and
the Confederate States at and from the dates of the respec-
tive proclamations of blockade by the President on the 19th
and 27th April 1861, Virginia having seceded by ordinance
of her convention on the 20th April, and having actuaUy and
formally Joined tbe Confederate States on the 27th April.
That, war thus existing, the establishment of a blockade was
within the constitutional powers of the President as the Chief
Executive Officer of the United States and Commander in Chief
of the Army and Navy. That certainly as to foreign nations
his acts were to be regarded fully and completely as the acts
of the United States, and the establishment of a blockade by
him was its establishment by the nation. That the validity of
the blockade so established by him was unquestioned by the
Congress which met after the issuing of the proclamation and
while it was in the course of enforcement, and that it was
expressly legalized by the statute of 6th August 1861, which
legalized and made valid the President's acts, proclamations,
and orders after the 4th March 1861 * respecting the Army and
Navy of the United States ♦ ♦ * with the same effect as
if they had been issued and done under the previous express
authority and direction of the Congress of the United States.'
(12 Stats, at L. 326.) That the validity of this blockade had
been fully recognized by the British Government as well as all
other foreign powers as eflectual and valid; citing the corre-
spondence of Lord Lyons, above recited, and Prof. Bernard's
e
3910 INTERNATIONAL ARBITRATIONS.
< Neutrality,' etc., p. 231n. That the proclamation of the Presi-
dent did not modify or assume to modify the law of blockade
as held by the rules of international law, and that it was only
in case of a vessel innocently approaching the blockaded port
without notice that she was entitled to be duly warned off
before becoming a subject of capture; citing on this point the
Columbia J 1 Kob. 156; the Vrow Judithj id. 152; the Betsey j id.
332; the Adelaide, 2 id. Ill; the Calypso, id. 298; the Tutelaj
6 id. 181 ; 3 Phillimore, 394 ; Prof. Bernard's Neutrality, p. 236.
That the misapprehension of legal rights by the master of the
Hiawatha could not be taken into account as excusing his
action in attempting to pass out through the blockade after
the expiration of the time allowed him by the rules of inter-
national law and by the specific notice contained in the diplo-
matic correspondence above recited for that purpose, and tiiat
the accidents by which the claimants attempted to excuse the
failure of the lliaicatha to leave within the i)ermitted time
could not be held to make her departure lawful or exempt her
from capture.
"As to the argument of the claimant's counsel in favor of
the rights of the claimant before this commission, under gen-
eral principles of justice and equity outside of and beyond
the principles of international law as held by the prize courts,
the counsel for the United States held the same general line
of argument as above reported under the case of the Sir
William Peel, No. 243, and insisted that the fact of the Gov-
ernment of the United States having remitted its lawful claims
for its own reasons in the cases of the Tropic Witid, the Octavia,
and the Haxall^ certainly (joiild not be taken as any reason for
enforcing as matter of right the same generosity in the case of
the Hiawatha.
"The commission unanimously disallowed
on 0 e m- ^^^ claims of Watkins & Leigh, No. 400, and
of Dalgetty, Du Croz & Co., No. 401, on the
ground that the ownership of the portions of the cargo claimed
by them, respectively, did not appear to be in them, but in a
citizen of the United States. They also unanimously disal-
lowed the claim of Wm. T. Marshall, No. 402, it apx>earing
that he was permanently domiciled in the city of Bichmond
within the enemy's country.
" It makes awards in favor of the claimants for the vessel in
Nos. 398 and 399^ amounting to $25,369, and an award in
PRIZE CASES. 3911
favor of the executors of McEwen, No. 462, in respect of Mc-
Ewen's portion of the cargo, for $6,090, Mr. Commissioner
Frazer dissenting from these three awards.''
American and British Claims Commission, Article XII. of the treaty of
May 8, 1871, Hale's Report, 130. See also Howard's Report, 91.
'^The steamship Circassian; Henry James
Case of the '•Cireas- gg^j.^^^^ mortgagee. No. 432, claimant for ves-
sel; Overend, Gnroey & Co., mortgagees,
claimants for freight; The Royal Exchange Assurance Cor-
poration and others. No. 444, claimants for cargo.
"The Circassian was owned by Zachariah C. Peason, of Hull,
who had given mortgages to the amount of £25,000 upon the
vessel, which mortgages were held by ^he claimant, Barker,
No. 432. He had also assigned her outward freight to Messrs.
Overend, Gurney & Co., No. 433, by way of security for indebt-
edness. The vessel sailed from Bordeaux, France, on the 7th
April 1862, under the charter party hereinafter recited. She
was captured by a United States cruiser on the 4th May 1862
on the high seas, ofif the coast of Cuba, taken into the port of
Key West, and there libeled and condemned as prize. An
appeal was taken to the Supreme Court, which court affirmed
the decree of condemnation, Mr. Justice Nelson dissenting.
The case is reported, with the dissenting opinion of Mr, Justice
Nelson, in 2 Wallace 135 to 160.
"The vessel was chartered by the owners 11th February
1862 to * J. Soubry, agent to the merchants of Paris,' being
then on her way from London to Cardiff, to proceed thence
with all convenient speed to Havre or Bordeaux, there to load;
^ and being so loaded, shall therewith proceed to Havana, Nas-
sau, or Bermuda, as ordered on sailing, and thence proceed to
a port of America, and to run the blockade, if so ordered by
freighters,' the owners agreeing * not to cover more than half
her value, say £20,000, by insurance against war risk.' The
rate of freight agreed upon was $40 per ton, with 10 per cent
primage. The vessel was loaded at Bordeaux, shipping re-
ceipts being given by the master in the following tenor (after
specifying the merchandise shipiied):
"'Which said merchandise I promise to convey in my said
steamer (the dangers of the seas, machinery, and all other un-
avoidable accidents excepted) to the said port of Havana, there
to receive orders for the final destination of my said steamer,
#
3912 INTERNATIONAL ARBITRATIONS.
and there to deliver the same to Messrs. Brnlatoar & Co., or
their order (or to order generally), he or they paying me freight
in accordance with the terms of my charter-party, which is to
be considered the supreme law as regards the voyage of said
steamer, the orders to be received for her and her final des-
tinatiou.' A < memorandum of affreightment,' given to Mr.
Bouvet, one of the shippers, was found among the pai)ers of
the vessel, the translation of which is as follows:
" ^Memorandum of affreightment
"< Taken on freight of Mr. Bouvet, jeune, by order and for
account of Mr. J. Soubry on board of the British steamer Cir-
ca^siauj Captain Hunter, bound to Nassau, Bermuda or
Havana, the cjuantity of fifty or sixty-five tons, heavy or light,
at the rate of $40 per ton for the heavy and the light, besides
10 per cent average and primage.
"* The merchandise must be put on board, including all de-
lay, the day after notice, given by the broker having in charge
the loading, under the penalty of all damages and the loss of
the place on board, without rerourse to judicial measures to
j)rove the suit for non execution of the present engagement.
"'Mr. J. Soubry engages to execute the charter party of
affreightment, that is to any, that the merchandise shall not be
disembarked but at the port of New Orleans, and to this effect
he engages to force the blockade, for account and with authority
of J. Soubry.
"'Laibert, Neveu.
««' BoRDEATTX, the irdh February 1862.
" ^ Sent a similar memorandum to the parties concerned.
"T. Desbordes.'
" Other papers were destroyed by the master of the Circas-
sian aft^r she had b(»en stopped, and before she was boarded
by the captors. The vessel was captured, as above stated, on
the 4th May 18C2. Five days previous to the cap'ture — on the
20th April 18G2 — the city of 2s'ew Orleans was captured by the
navy and army of the United States, under Admiral Farragut
and Cieneral Butler, and thenceforward continued in the pos-
session of the United States to the termination of the war. A
proclamation was issued by Oeneral Butler, dated 1st May,
printed by some Federal soldiers in a printing office seized for
that purpose, on the 2d May, and first generally published in
the newspapers of the city on the ()th May; which proclama-
tion declared, among other things, that ^ the city of New Orleans
and its environs, with all its interior and exterior defenses,
PRIZE CASES. 8913
having been sarrendered to the combined naval and land forces
of the United States; and having been evacuated by the rebel
forces, in whose occupation they lately were; and being now
in occupation of the forces of the United States, who have to
restore order, maintain public tranquillity, and enforce peace
and quiet under the laws and Constitution of the United
States, the major-general hereby makes known and proclaims
the objects and purpose of the Grovemmenfc of the United
States in thus taking possession of the city of !New Orleans
and the State of Louisiana. ♦ • ♦ All rights of property
of whatever kind will be held inviolate, subject only to the
laws of the United States,' etc. This proclamation also
declared the city under martial law.
" In the case of the Venice (2 Wall. 276) the Supreme Court
of the United States held that the military occupation of the
city was to be considered as substantially complete from the
date of this publication in the newspapers (6th May),
" On the 12th May President Lincoln issued a proclamation
reciting the blockade, up to that time, of the port of New
Orleans, with two other ports, and that the blockade of those
ports *may now be Siafely relaxed with advantage to the inter-
ests of commerce,' and declaring that the blockade of those
ports ^ shall so far cease and determine from and after the 1st
day of June next; that commercial intercourse with those
ports, except as to persons, things, and information contra-
band of war, may from that time be carried on, subject to the
laws of the Uniteil States," etc. (12 Stats, at L. 1263, 1264.)
"Barker, as mortgagee of the vessel (No. 432), claimed
£23,200, besides interest. Overend, Gumey & Co., assignees
of the outward freight (No. 433), claimed £10,000, besides
interest. The insurance companies and underwriters (No. 444)
claimed £52,036, besides interest, the value of the cargo insured
by them, abandoned by the owners, and paid for as for a total
loss. Of the cargo thus insured, portions to the value of
£11,503 were alleged to have been owned by British subjects
and insured by the claimants, British underwriters. The
remainder of the cargo, valued at £41,133, was admitted to
have been owned by French merchants residing at Bordeaux,
though insured by British underwriters. On the sale under
the decree of condemnation the gross proceeds of the vessel
were $107,000, United States currency; the gross proceeds of
the cargo were §243,479.49 in the same currency.
r
3914 INTEBNATIONAL AKBITRATIOHS.
^^ On the part of the claimants it was main-
***!-*» *r*^ tained-
vIMTIIHtf
^^ 1. That the immediate destination of the
Circamian at the time of her capture waa Havana, a neatral
port; that this destination was a real one; and that the qnes-
tion whether her voyage was to extend beyond Havana was
an o[)en cjaestioii, not to lie decided until her arrival there; so
that her capture before reaching Havana conld not be consid-
ered a capture in the course of a voyage to a blockaded port;
that until her arrival at Havana and departure thence for a
bloi;kaded port a locwi penitentiie existed, even if the original
design had l>een that she should procee^l from Havana to New
Orleans.
'<2. That notwithstanding the doctrines held by the prize
courts of England and the United States, the more approved
modern authorities overrule the doctrine of the droit de pre-
vention and droit de suite; ' that is to say, the right of consid-
ering as guilty of a violation of the blockade every neatral
vessel whi(;h has Hailed for a place declared blockaded after
knowledge of the notification, and of regarding in flagrante
delicto, (luring the whole return voyage to its port of destina-
tion, every vessel which has left a blockaded port;' and hold as
the better doctrine that 'the guilty vessel can only be seized,
first, at the moment of violating the blockade by crossing the
part of the sea which has been conquered by the blockading
squiulron; secoinl, in the road or blockaded port, if the invest-
ing force can enter there, either by taking the port or by pen-
etrating there by force or wtratageni and carrying otf the vessel;
and, third, at the moment of attempting to go out — that is to
say, when crossing the territory of a nation whose law it has
violated, even although the departure in itself shall be inno-
cent/ That under this docrtrine the cai)ture of the Circassian
was unlawful on the high seas, even if her direct destination
was a blockaded port.
'^'^. That by the terms of the President's proclamation of
blockade, as well as by the rules of international law, the Cir-
cassian could not be lawfully cai)tured until she had received
due notice of the blockade by warning entered upon her
register.
" 4. That by the caj>ture of New Orleans and the reduction
of that city to the possession and control of the United States
PRIZE CASES. 3915
before the capture of the Circussianj the blockade of that x>ort
had ceased; that the right of blockade being a purely bellig-
erent right, and in resi>ect of an enemy's port, of necessity
terminates eo instanti on the capture of the blockaded port
itself by tiie blockading belligerent; that in the case of New
Orleans, not only was the fact of its capture in the month of
April, and its permanent and complete occupancy and control
by the United States from that time forward fully attested
as a matter of history, but such possession and occupation was
officially asserted and proclaimed by the proclamation of Gen-
eral Butler on the Ist May 1862; that this proclamation speaks
from its date, and not from the time of its alleged general
publication in the newspapers, erroneously assumed by the
Supreme Court to have been on the 6th May, it in .fact having
been published in the ^ew Orleans Daily Picayune on the 4th
May 1862, as appeared by a copy of that paper produced before
the commission ; that the right to close or control the captured
port by municipal regulation under the statute of 13th July
1861 (12 Stats, at L. 256, 257) was not only entirely distinct
from but inconsistent with the belligerent right of blockade,
and that the former right accrued when the latter terminated,
upon the capture and complete x)ossession of the city, and that.,
under the municipal regulations instituted, or to be instituted,
in such case, plainly no capture could be made on the high
seas, those municipal regulations not operating extraterri-
torially; that the blockade having thus terminated by the
capture of New Orleans, the right of capture of the Circassian^
if it had existed until then, necessarily terminated with the
termination of the blockade, the vessel no longer being in
delicto. That in regard to the claims of the insurance com-
panies and underwriters in No. 444, those claims were the
legitimate subject of reclamation before this commission, as
well in respect of those portions of the insured cargo originally
owned by French merchants as of those owned by British sub-
jects; that upon abandonment and payment the title of the
underwriters became absolute to all interest of the insured
in the property, and to all right of reclamation in respect of
the same, and that such title related back to the date of the
insurance.
"The counsel for the claimants presented manuscript opin-
ions of Doctors Phillimore and Lushington, and other counsel,
3916 INTERNATIONAL ARBITRATIONS.
holding the capture of the Circassian illegal on account of the
lack of previous warning as well as upon the ground of the
previous capture and occupation of New Orleans. They also
presented the dissenting opinion of Mr. Justice Nelson, in the
case of the Circassian (2 Wall. 156), as a correct exposition of
the law applicable to the case, and cited the following authori-
ties : The Prize Cases (2 Black, 635) ; the Amy Warwick (2
Sprague, 123) ; the Venice (2 Wall. 259) ; Thirty Hogsheads of
Sugar V. Boyle (9 Cranch, 191); The United States v. Rice
(4 Wheat. 246); Fleming v. Page (9 How. 603); Cross v. Har-
rison (16 How. 164); The Abby (5 Rob. 253); The Trende Soztre
(6 Rob. 390 n); The Francisco (10 Moore's P. O. R. 37); Palli,
Principes de droit pub, mer. 180; Dana's Wheat. 687 n; The
Lizette (6 Rob. 396); The mnpress (Blatch. P. C. 659); Dean's
Law of Blockade 2, 32; Lawrence's Wheaton, pp. 30, 100, 469,
510, 777 to 779, 810, 845, 848 to 850, 970; Wheaton's Life of
Pinkney, 199 to 228; The BicMnson (1 H. and M. 31); La
Jeune Eugenie (2 Mason, 409, 463; The JjOtiis (2 Dods. 110).;
The Antelope (10 Wheat. 122) ; The Marianna Flora (11 Wheat.
442); Lawrence's Visitation and Search, 73, 79; Hudson ty.
(^uestier (6 Cranch, 281); Race r. Himely (4 Cranch, 272); 2
Phill. 237; American State Papers, vol. 4, pp. 156, 168; The
Arthur (1 Dods. 425); Hautefeuille, vol. 2, pp. 239, 244; Vos
r. United States Insurance Company (1 Caines's Cases in
Error, XXIV); Vandenheuvel r. Same (2 id, 217); Liotard v.
Graves (3 Caines's Rei)'8, 239); Fitzsinunons v. The Newjwrt
Insursince Company (4 Cranch, 185); Hill r. United States
(C.Cls.R.); The Maria (5 Rob. 365); The Maryland Insurance
Company r. Wood (6 Cranch, 29); The Admiral (3 Wall. 614);
Attorney-General's Opinions, vol. 1, p. 505; The Fredericlc
Molke (1 Rob. 87); The Rolla (0 id, 372); The Success (1 Dods.
134) ; La Peyre r. United States, in U. S. Sup. Ct. MS. opin.
not yet reported; Bynkershoek de rebus bellicis, c. XVI: The
Grey- Jacket (5 Wall. 342); 8. C. on motion (id, 370); Tudor's
Leading (3ases on Mercantile and Maritime Law, 887; Texas
V. White (7 Wall. 780); Comegys v. Vasse (1 Peters, 210);
Shepherd r. Taylor (5 /(/. 712); Trevol r. Bache (14 tU 95);
Gill r. Oliver's Executors (11 How. 529); Jaudon r. Corcoran
(17 id, 612) ; Gracie r. New York Insurance Company (8 John-
son's R. 237); Watson r. Insurance* Company of North Amer-
ica (1 Binney, 47); Carlisle r. irnited States, in Sup. Ct. not
yet reported.
PRIZE CASES. 3917
<< On the part of the ITnited States it was
Axgiiment for tiie ^^t^ij^j^ ^ij^t the voyage of the Circassian
United States.
was plainly undertaken with the purpose and
intent of violating the blockade; that she was nnder express
contract with her freighters to violate it, and was in the actual
prosecution of the voyage with that purpose and destination
when captured, and was thereby liable to capture and condem-
nation. (The Columbiaj 1 Eob. 156.) That having full knowl-
edge of the existence of the blockade, and having expressly
undertaken its violation, no further notice or warning was
necessary to justify her capture.
" That New Orleans, which had been fiilly and completely
an enemy's city, and one of the enemy's chief marts from the
outbreak of the rebellion in 1861 to its occupation by the
Army and li^avy of the United States on the 29th April, 1862 —
five days before the capture of the Circassian — ^had not been
reduced to the fixed, stable, and assured possession of the
United States at the time of that capture. That the mere
possessio pedis of the city by the United States did not work
the instant termination of the blockade, but that reasonable
time after the actual possession must be allowed to determine
whether the occupation was such a stable and permanent one
as to justify the opening of the port as a port of the United
States. That until such occupation was so established. New
Orleans still remained an enemy's city as regarded the rights
of neutrals to trade there.
" That time must be given after the actual occupation, rea-
sonably sufficient to put in force the municipal regulations of
the United States, with the ax)paratus of custom-houses and
courts, through which such municipal regulations were to be
enforced; and that until sufficient time had elapsed for that
purpose, the belligerent right of blockade continued; that the
blockade of New Orleans was not a blockade * by the simple
fact only,' but *by a notification aoxK)mpanied with the fact;'
and such blockade continued within reasonable limitation till
ended by like public notification. (The Neptune, 1 Eob. 170.)
"That the time fixed by the Supreme Court in the case of
the Venice (2 Wall. 259) as the date of the assured possession
by the United States, as determining the national character
of the inhabitants of that city (6th May, 1862), was certainly
the earliest date which could properly be assigned as that of
assured possession by the United States for any pur))ose.
f
3918 INTERNATIONAL ARBITRATIONS.
<^ That, in fact, the time uecessary to establish the perma-
nence and stability of possession, by the capturing belliger-
ent, should fairly and properly be left, within reasonable
limits, to his own determination, and that the dateof 1st Jane,
1862, fixed by the President of the United States, by his proc-
lamation of 12th May (12 ^tat. at L. 1263, 1264), for the ter-
mination of the blockade, was within reasonable limits ander
the rules of international law; and that that date (Ist Jane)
shoald be considered the lawful and proper termination of the
blockade.
" That, at the date of the capture of the Circassiany the city
of New Orleans, though in the actual occupancy of the United
States forces, had neither capitulated nor surrendered, bat was
still an enemy's city, deserted for the time by its garrison, bat
held only by an insigniticant force, and what its chief civic
oflBcer, still avowing the adherence of the city to the Confed-
erate cause, called * the power of brutal force, not by choice
or consent of its inhabitants.' (See letter of the mayor of
New Orleans to Flag Officer Farragut, 4 Reb. Rec., doc, 523,
524; also, 2d Wallace, 141 n; and Parton's Butler in New Or-
leans, 282, 342.) That the military occupation of the city of
New Orleans by the United States could not be extended by
construction beyond the lines of actual military occupation,
and that the city of New Orleans was not conterminous with
the port of New Orleans as established by the statutes of the
United States (9 Stat, at L. 458) ; but that the port which had
been blockaded embraced territory outside the city, and not
within the lines of actual military occupation. That such
occupation of a portion only of the port could not be deemed,
of itself, a termination of the blockade of the port.
"That the collection district of which New Orleans was the
sole port of entry, included the entire extent of the navigation
of the Mississii)|)i Uiver and its tributaries, covering thou-
sands of miles of navigation, and large cities situated upon
that river and tributaries (2 Stat, at L. 252; 4 id, 480). That a
large extent of the country included within this district, and
many important porta and towns within it, were still in the
undisturbed control and occupancy of the enemy. That the
blockade of New Orleans was in efl'ect the blockade of the
Mississippi Kiver, and that until the Unit<*d States were in
complete and assured possession of all the mouths of the river
as well as tAie entire port of New Orleans, the imperfect and
PRIZE CASES. 3919
perhaps transient occupation of the city of New Orleans was
not to be taken as terminating the blockade.
"That so far as the Circassian herself and her oflBcers were
concerned, sailing with the direct purpose and destination of
violating the blockade, and without knowledge or notice either
to them or their captors of any change of occupation of New
Orleans, such an accidental, technical, and artificial objection
to the rightfulness of her capture should not be allowed to
change the character of a capture otherwise lawful, and con-
vert it into an unlawful capture, without strict and conclusive
proof of the facts relied on so to change the character of the
capture.
"That, as to the claim of the insurance companies (No. 444),
they had no standing before the commission in respect of the
larger part of the cargo insured by them, the same having been
the property of French merchants, not subjects of Her Britan-
nic Majesty. That, by the terras of the treaty, jurisdiction is
given to the commissiononly of claims * growing out of injuries
to the persons and property of British subjects.'
"That the gist of the injury here complained of was the
wrongful capture of the Circassian and her cargo, the subse-
quent condemnation and sale being merely incidents of the
capture in the course of the adjudication by the tribunals of
the United States, as to its lawfulness, merely for the purpose
of determining whether the capture should be ultimately
adopted as the act of the United States. That, when captured,
this part of the cargo was not the property of the subjects of
Her Britannic Majesty. That the abandonment by the insured
to the insurers after capture, the acceptance of such abandon-
ment by the insurers, and payment as for a total loss, simply
operated as a transfer to the insurers of the rights of the
assured in respect of the capture; and that the insurers stood
merely as subrogated to the rights of the owners at the time
of the capture, and as their equitable assignees. That such
transfer by operation of law gave to the insurers as equitable
assignees no better standing before the commission than they
would have in case of a claim tor any other injuries to the per-
sons or property of individuals not subjects of Her Britannic
Majesty, but who had assigned their claim against the United
States for such injuries to a British subject. That so far,
therefore, as the property of these ' French merchants' on board
the Circassian was concerned, no right of reclamation against
the United States under the treaty existed in the claimants.
r
3920 INTERNATIONAL ARBITRATIONS.
^'The commission (Mr. Commissioner Frazer
Dedaion of the Com- ^iggg^^ing) jj^^^^ awards in fovor of all the
claimants. To the claimants in TSo. 432 the
sum of $71,428; in No. 433, the sum of 920,450, and in 444 the
sum of $133,296. I am advised that these respective sums in
Nos. 432 and 444 were taken by the commission as the actual
proceeds of the sales of the vessel and cargo, respectively,
reduced from United States currency at its value at the date
of sale. to a gold basis, and without the allowance of any inter-
est. The award in No. 444 covered as well the prooeeda of
the cargo belonging to the French merchants as the portions
owned by British subjects."
American and liritish Claims Commission, Article XII. of treaty of May
8, 1871, Hale's Report, 141. See also Howard's Report, 124.
The dissenting opinion of Mr. Frazer was as follows:
Mr. Eraser's Dissent- ^'llie only lawful object of a blockade is to injure
ing Opinion. the enemy. Hence there can not, consistently with
public law, be a blockade of a port unless it be an
enemy's port.
^' But I am nut prepared to say that the mere occupancy of a port, how-
ever precarious and temporary, by the belligerent maintaining the block-
ade thereof, is such a ponseHsion as makes the port no longer the enemy's,
but that of the blockading belligereut, thereby terminating the blockade.
I know of no authority which goes to that extent. In such a case I think
the question must be regarded as oue of tirst impression, opeu to the just
influence of every consideration which should afl'ect the decision of a new
question.
" Hut I do not think this question is necessarily involved in the decision
of the cases growing out of the capture and condemnation of the Circa*'
siaiif and therefore I do not discuHs it.
'' There has been much criticism of the judgment of the Supreme Court
in the case of the Circassian (2 Wall. 135). That judgment has been ques-
tioned in quarterrt entitled to great respect; and it has, on such occasions,
uniformly, I believe, been assumed that at the date of the capture of the
vessel (May 4, 18<52) the port of New Orleans waN in the possession of the
United States, a poHsession which subsequent events proved to be (what-
ever may have been apprehended at the time) permiinent and uninter-
rupted. And it has l)een assumed that the Supreme Court held that under
such circumstances the blockade of the port Wivs not brought to an end.
This is a grave misapprehension, not only of historical facts but of the
doctrine announced by the Supreme Court; and yet so easy to fall into
that only by care can it be avoided. It is undoubtedly a fact of history
that for several days ])rior to the capture at sea of this ship the military
forces of the United States had actual possession of the city of Now Orleans,
were not there immediately menaced by any hostile force, and ever after
held it. It is so natural to confound the city with the port of Now Orleans
that the error is not wonderful. And yet the distinction is very wide, and
practically very important.
PRIZE CASES. 3921
** The city 9f New Orleaus, of which the United States held poBseasion,
was a municipal corporation possessing geographical boundaries defined
by the laws of the State of Louisiana. The boundaries included at the
utmost only so much of that larger territory called the parish of Orleans
as lies on the left bank of the Mississippi River. But the national gov-
emmenty having by the Constitution the control of commerce and conse-
quently the power to define the geographical limits of the ports of the
United States, had, by act of Congress taking effect September 16, 1860,
declared ' that the port of New Orleans shall be, and is hereby, so extended
as to embrace the whole parish of New Orleans on both sides of the Mis-
sissippi River.' (9 8tats. at L. 458.) It was not the city merely, but the
whole port which had been blockaded. And the question before the Su-
preme Court was not whether the possession of a port by a blockading
belligerent puts an end to the blockade. It is a disregard of the facts so
to state it, and it is a misapprehension of the decision of the court to sup-
pose that it was reached by determining that question in the negative.
The real question was deemed by the majority of the court to be whether
possession of the city by the United States terminated its blockade of the
port It needs only a careful reading of the opinion of the Chief Justice
to see that he saw clearly the difference between the city and the port of
New Orleans; and an examination of the dissenting opinion of Judge
Nelson will also show that he entirely confounded the city with the port.
** Is it possible to misunderstand the following language found in the
opinion of the Chief Justice f
** * It (the blockade) applied not to the city alone, but controlled the port
which includes the whole parish of Orleans and lies on both sides of the
Mississippi, and all the ports on that river and on the lakes east of the
city. Now, it may be well enough conceded that a continuous and com-
plete possession of the city and the port and of the approaches from the
Gulf would make a blockade unnecessary, and would supersede it. But
at the time of the capture of the Circassian there was no such possession.
Only the city was occupied, not the port.*
'* Nothing can be more certain than that the Chief Justice thought there
was an important and very practical distinction between the city and the
port of New Orleans with reference to the ({uestion of blockade. If uot,
then this language, marking so clearly the difference between the two
things and dwelling upon the fact that though the city was occupied by
the Federal forces a very large part of the port was not so occupied, was
idle verbiage, injected into the opinion for no purpose, unless it may have
been to increiise its volume !
** I think the Chief .Justice was correct in supposing that the difference
between the city and the port was of practical importance in the case. A
little consideration will make this quite apparent.
** No rebel military force, it is true, occupied that part of the port (the
right bank of the river, many miles in length) which was not occupied by
the United States on the 4th May, 1862 ; but it was, de facto, territory of
the rebel belligerent, nevertheless. Trade there was trade with the enemy,
to prevent which is the lawful purpose of blockade. It is not necessary
to the lawful l>lockade of an enemy's port that the enemy should hold it
by the presence of a military force. Suppose, then, that on the 4th May
3922 INTERNATIONAL ABBITBATIONS.
1862 the Circusaian had steamed into the port with a view to diaoharge her.
cargo at any landing on the right bank of the river within the port, rebel
merchants, noncombatauts, being ready to receive it there and transport
it into the interior, no portion of the goods being contraband, by what
right, save that of blockade, could the Federal fleet have interfered to
prevent itf The position and ntrength of that fleet, it is true, enabled it
to capture, without fail, every vessel which might have attempted such a
thing; but this physical ability to rapture did not, per se, confer the right
to exercise it ; nor did it, per se, end the blockade. It is said that a mnuici-
pal regulation might have been enacted prohibiting such importations or
controlling them, and in execution of such an enactment the force at hand
could have been employed, but this is no relief from the dilemma. The
right by municipal regulations to close rebel ports and render trade with
them unlawful was claimed by the United States yery early in the rebel-
lion. It was proposed, but the right to do so was denied by Great Britain
and other neutral nations, and it« exerciHC was forborne in deference to
their protests. Even in the argument for the claimant in these oases the
right uf the United States to exercise sovereign righte (and belligerent
rights at the same time) againnt the rebels t<> the prejudice of neutrals is
earnestly combated by a gentleman who, as a writer upon public law,
stands deservedly high as an authority, and who, in his published works,
had before expressed the same opinion. Whatever may be true as to that,
it is very certain that Qreat Britain, having contributed more than any
other nation to induce the United States to forbear, by denying the right,
can not now fairly claim for her subjects the benefit of a principle which
at the time she ao Htoutly denied. Municipal regulations prohibiting
neutral import trade with any part of the port of New Orleans not in Fed-
eral possession would have been as obnoxious to Great Britain as if a like
attempt had been made at that time conceniing Mobile, Charleston, or
Savanuah. The principle which would have justified it in the one case
would have maintained it in all.
''If the consideratiou of the case left it doubtful whether the judgment
of the Supreme Court was in €accor<iau<*e with public law, it would be our
plain duty, according to all authority, to disallow these claims. So much
detereuce in a case of doubt is due to a deliberate judgment of a court
whose independence, impartiality, and learning has given it a character
in (ireat Britain not less lofty than it possesses at home.
'' But I do not doubt. Conmients and criticisms upon the judgment of
the court had fallen under my eye; trustiug to which, I confess, I had
beeu somewhat iuipressed with serious doubts (to say the least) of the
legality of the condemnation. But a very careful study of the case shows
that, in making such criticisms, no account has been taken of the impor-
tant fact that the possession of the rnited Stat<'s forces at New Orleans
did not extend to the whole port when the ship wass<*ized; no such entire
possession being anywhere directly asserted. That the error is one of
inference, resulting from the fact, doubtless, that the wider area of the
port, as contradistinguished from the city of the same name, has usually
escaped attention. It follows, therefore, that the ]>rinciple supposed to
be violated by the <^ourt was really not violated at all, and that the ques-
tion was not that which has beeu sometimes supposed. It is not, I may
PRIZE CASES. 3923
hope, improper to say that the best oare and Jadgment which I am able
to bring to the consideration of the case has resulted in a clear conviction
that the condemnation of the Circasaian was correct/'
4. Claims fob Damages for Alleged Unlawful
Warning Off.
^< These claims were three iu number — that
Casesof the "Boyne,»» Qf Benjamin Whitworth and others, owners
^^;;^y of the ship Boyne, No. 216; that of Andrew
Ewing Byrne and others, owners of the ship
Monmouthj No. 315; and that of Matthew Isaac Wilson, owner
of the bark Hilja, No. 467.
" The Boyne (No, 216) sailed from Fleetwood, Lancashire,
England, on the 25th March 1861, with a cargo of coals for
Savannah, Georgia. On the 11th May, when near the entrance
of the harbor of Charleston, S. C, she was boarded by an offi-
cer of the United States steam frigate Niagara^ who made this
entry npon her register:
« ( Warned off the whole coast of the South by the United
States steamer Niagara^ May 11, 1861. Edwaid E. Potter,
lieutenant. United States Navy.'
^' In consequence of this warning she abandoned her voyage
to Savannah and went to New York, where it was alleged that
she disposed of the cargo of coal at a rate much less than it
would have commanded in Savannah, and took a homeward
freight from New York of much less value than she would have
secured from Savannah. In fact, at the date of the warning
HO sufficient blockade had been instituted at Savannah or at
any other port south of Charleston ; the actual blockade of
Savannah not having commenced until the 28th May. The
memorial claimed damages by reason of loss on outward cargo,
and on return freight below that which she would have earned
from Savannah, and by detention of the vessel, £6,460 13«. Od.,
besides interest.
**The Monmouth (No. 315) sailed from Liverpool in March
1861, with a cargo of salt, under written instructions to pro-
ceed to Charleston and deliver vessel and cargo to consignees
there; and if that port should be found blockaded, then to go
to Savannah; and if he failed iu getting a cotton freight at
either Charleston or Savannah, then to go to St. Stephen, New
Brunswick, and load with a cargo of deals for the return voy-
age. On the 12th May she arrived off the harbor of Charles-
5627— VOL. 4 -AA
A
3924 INTERNATIONAL ARBITRATIONS.
ton; was boarded by an officer of the blockading vesael
Niagara^ and the following entry made upon her register:
''' Boarded; informed of the blockade, and warned off the
coast of all the Southern States by the tlnited States steam-
ship Niagara^ May 12, 18(»1.'
<< The master thereupon abandoned his voyage to Charleston
and Savannah and went to St. Stephen, New Brunswick,
where he disposed of his cargo of salt and took his retam
cargo of deals. The memorial claimed damages by losses on
her cargo of salt and of return freight, short of what she wonld
have received from Savannah, and costs, and charges, and
delay, to which she was necessarily subjected by her change
of destination, £10,672 10«. M.
<'The Hilja (No. 467) sailed from Liverpool on the 25th
March 1861, in ballast, for Charleston, the memorial alleging
tliat she intended to load on freight at that port or at Savan-
nah, a return cargo of cotton for Liverpool. She was boarded
by an officer of the United States steamship Niagara off
Charleston Harbor, on the 12th May, and a warning entered
upon her register substantially the same as in the case of the
Monmouth. The memorial alleged that the captain of the
Hiljay having an alternative destination to Savannah, was
debarred from proceeding to that port by this warning; that
she thereupon proceeded to Pugwash, but gave no information
as to her earnings by her return freight. Damages were
claimed to the amount of £6,101 3«. Id., besides interest —
the amount of freight which, it was alleged, the vessel would
have earned by a return cargo of cotton from Charleston or
Savannah.
*' The sailing orders of the Hilja were not put in evidence
nor accounted for, though it appeared that she sailed nnder
written orders; nor was any evidence adduced as to her alter*
native destination to Savannah except that of the claimant
himself, examined on notice, who, after many evasive and con-
tradictory answers on cross-examination as to the destination
of the vessel, finally summed up his evidence in this regard by
saying: < I think I mentioned to him verbally that if freights
were better at Savannah he was to go there.' The claimant
also testified that he had, through Mr. A. E. Byrne (claimant
in No. 315), had correspondence with the British foreign office
in respect to this warning olf of his vessel, and that he had
had like correspondence with Uer Majesty's consul at OharlM-
PRIZE CASES. 3925
ton through Messrs. Bobert Muir & Co., and that there had
also been correspondence between Muir & Go. aod himself,
and between Henderson, the master of the vessel (since dead),
aud himself; but none of this correspondence was either pro-
duced or accounted for. No proof was made as to the avails
of the return freight from Pugwash, except the general state-
ment of the claimant in his deposition that ^ the whole voyage
brought in a loss;' and on cross-examination the claimant,
when questioned as to his transactions in connection with vio-
lating the blockade during the war and furDishing aid to the
Confederate government, declined to answer all such questions.
^< It appeared that an actual blockade of the port of Charles
ton was established by the presence of a sufficient blockading
force at the dates of the respective warnings of the three
vessels.
^^The three cases were argued aud submitted together.
^< On the part of the United States it was contended that the
warning entered upon the register of these vessels, respec-
tively, so far as applicable to any unblockaded ports, was
without authority of the United States, a clear error on the
part of the officer giving the warning, insufficient to preclude
the further voyage of the vessels warned to any unblockaded
port, and had never been adopted or ratified by the United
States; that the case rested on the voluntary abandonment,
by the masters of the Monmouth and the BoynCj respectively,
of their alternative voyage to Savannah, ui>on an incorrect
warning, unduly given by an unauthorized officer of the United
States, and that for such loss no reclamation lay against the
United States.
'^In the case of the Hilja it was maintained on the part of
the United States that the proof showed no alternative desti-
nation to Savannah ; that the vessel was merely stopped from
entering the blockaded port of Charleston, to which she was
destined, and that no loss whatever was shown to have iiccrued
to her, except that caused by her being prevented from enter-
ing that port, and that no proof was made of actual loss even
in this respect; that the nonprod action, by the claimant Wil-
son, of the correspondence with the British foreign office, and
with the British consul at Charleston, as well as his own
correspondence with his captain, Henderson, and his agents
at Charleston, Muir & Co., sufficiently indicated that the
claimant then put his claim for compensation solely on the
3926 INTERNATIONAL ARBITRATIONS.
ground of the illegality or insufficiency of the blockade of
Charleston, and that the pretended alternative destination to
Savannah was an afterthought, borrowed from the cases of the
Monmouth and the Boyne; that his own testimony , on which
he rested the case, was upon its face unworthy of credit.
^*The counsel for the Uniteil Stiites also claimed that in the
case of an award of damages in any of these cases, the antici-
pated earnings by freights from Savannah, at high rates, coold
not be taken into aecouut as elements of the award; that
such anticipated earnings were speculative and illusory; that
the evidence showed that the market at Savannah, in respect
both of sales of the outward cargoes and of the rate of freights,
was exceedingly irregular and violent in its fluctuations, and
in efl'ect a gaming market; that it could not be assumed that
the vessels could have secured return cargoes at Savannah in
season to leave within the time limited after the establishment
of the blockade there, nor that they could have secured such
rates of freight as were claimed in the respective cases; and
that these claims were of substantially the same nature of
speculative and uncertain prospective profits which wei'e re-
jected by the tribunal at Geneva in the case of the claims for
anticipated earnings and profits of captured vessels, claimed
before that tribunal.
<^ The commission in the case of the Boyne (No. 216) unani-
mously made an award in favor of the claimants for $32,553.
In the case of the Monmouth (No. 315) they made an award
in favor of the claimants for $40,843, Mr. Commissioner Frazer
dissenting on the question of amount.
" In the case of the Hilda (No. 407) the claim was disal-
lowed, Mr. Commissioner Guruey dissenting."
Ainoricau and British Claims Commission, Article XII. treaty of May
8, 1871, Hale's Report, 15(). S«'e also Howard's Keport, 100.
. . On the general <iuestion involved in the foregoing
^ ^ ^' cases Mr. Frazer, oomiiiissiontT on the part of the
United ►States, rend(*rcd the following opinion:
"The allowance of prospective earnings by vessels was denied by the
tribunal at Geneva unanimounly. It is not, so far as I am aware, allowed
by the mnnici]>al law of any civilized nation anywhere. The reason is
obvious and universally recognized among jurists. It is not possible to
iiscertain such earnings with any a]>proxiniatinn to certainty. There are
a thousand unknown contingencies, the happening of any of which will
render incorrect any estimate of thcni, and hence result in injustice.
"Who can sav that the Monmouth would have reached Savannah at all;
that she could have procured a cargo of cotton at jd. per pound, the low-
PBIZE CASES. 3927
eet freight in proof f Who can Bay that she would have got hetter or as
good rates as that f Why could she have done hotter f There is no reason.
Who can say that she could have hoen laden and sailed hefore the block-
ade would have stopped herf The witnesses do not say so, but only 'if
she had met no detention or accident.' Can this commission say so? It is
palpable that we can only conjecture, and conjecture is no fit basis for an
award of damages. We should have had evidence more satisfactory
from the claimant, such as the prevailing rate of charter of such a vessel
at the time and place. Under such circumstances we are left to estimate
the value of the vessel for return cargo upon very unsatisfactory evidence.
I base my estimate uptm cotton freight at f d. per pound, because there is,
in my judgment, a greater probability, in view of all contingencies, that
thin is above rather than below a just estimate.
"These observations apply also to the case of the BoynCf heretofore de^
cided. I now doubt whether this is not too much. It assumes that each
contingency would have been avoided, the happening of any one of
which would have prevented this vessel from doing as well as some others;
and this assumption in favor of the claimant is quite as much as, in my
judg^ient, we may make, with due regard to public law, as declared at
Geneva, and to the principles of justice, as recognized everywhere.
**The Monmouth (No. 315). The President, by proclamation of April 19,
1861, gave public notice of a purpose to blockade the ports of South Caro-
lina, Gc'orgia, and of the States south thereof, announcing that a 'compe-
tent force irould be posted' fur that purpose. The proclamation announced
further that any vessel approaching or attempting to leave * either of said
ports' with a view to viohite 'such blockade,' would be warned by the
commander of 'one of the blockading vessels,' who would indorse such
warning and the date thereof on her register, and any subsequent attempt
of the same vessel to enter or leave ' the blockaded port* (certainly meaning ,
every port covered by the warning) would result in capture. It can not be
supposed that it was intended that this warning was to be repeated off
each port blockaded.
''In these cases the warning was by a vessel blockading Charleston and
off that port before there wns any actual blockading force off Savannah,
and was indorsed thus:
'* ' Boarded, informed of the blockade, and warned off the coast of all the
Southern States by the United States steamship Niagara, May 12, 1861.
"'Edward C. Potter,
** * Lieutenant United States Navy.*
"This warning was not, and is not, disavowed. It must therefore have
the same effect as if the ofBcer giving it had been expressly instructed by
the highest authority to give it in that form. It must bo regarded as the
act of the United States, and was notice to the vessel that all the Houthorn
ports embraced within the proclamation were then actually blockaded,
and that any subsequent attempt of the vessel warned to enter any of
such ports would result in capture.
"A vessel bound for Savannah, thus warned, it is true, might have dis-
regarded the warning, and could lawfully have proceeded to Savannah
because there waH not in fact any force blockading that port. If captured
3928 INTERNATIONAL. ARBITRATIONS.
she would unquestionably have been discharged with damages by the
prize court.
'' But must the neutral merchantman run the hazard of attempting to
euter Savannah f Had she found there an actual blockade and been cap-
tured, her previous warning would have been good, and her condemnation
as good prize would have been certain. There is in the fiicte every element
of a strong obligation upon the United States, and in favor of a vessel
which, oil the faith of the warning given, fully respected it, and by so
doing Huifered loss, to make good that loss. The neutral vessel, ignorant
as to the facts, had a right to act upon the warning; and I am compelled
to hold that, in doing so, she acted with all prudence and propriety, and
that, judging, as her captors must at the time, any other conrse would
have been rashness and folly. A regard for the interests of his owners, as
well as respect for the United States, required that the master should
abandon any purpose to enter Savannah.
"These observations apply also to Nos. 216 and 467/'
6. Doctrine of Continuous Voyage.
"The bark Springbok^ John Biley, manager,
^"*^'*J^J'„^P'^°*'etc., No. 442, claimant for vessel; S. Isaac
Campbell & Co. and Thomas Stirling Beg-
bie, No. 310, claimants for cargo.
"This vessel was captured by a United States cmiser on
the 3d February 1863 on the Atlantic Ocean, about one
hundred and fifty miles east of Nassau, New Providence; was
taken into the port of New York, and there libeled in the
district court. That court rendered a decree of condemnation
of both vessel and cargo. (See the report of the case, Blatch-
ford's Prize Cases, pj). 434-4(>3.) The claimants appealed to
the Supreme Court, which affirmed the judgment of condem-
nation of the district court as to the cargo, but reversed it as
to the vessel, adjudging restitution of the vessel, but without
costs or damages to the claimants. (5 Wall. 1.)
" The claimant John Riley, No. 442, claimed as manager of
the London A 1 Insurance Association, the A 1 Guarantee
Insurance Association, and the Colonial A 1 Insurance Asso-
ciation, insurers of the vessel, and who had, on abandonment
by the owners, i)aid as for a total loss. He claimed an award
for £4,()15, besides interest, damages for the detention of the
vessel, loss of profits, and costs and expenses in the prize
courts.
"The claimants S. Isaac Campbell & Co. and Begbie
claimed £68,378, the alleged value of the condemned cargo,
and costs and expenses in the prize courts. The facts of the
PRIZE CASES. 3929
case as appeanng before the prize courts are sufficiently set
forth iu the reports of the respective courts above cited.
<< In addition to the proofs before the prize courts the claim-
ants gave evidence before the commission tending to show
that the actual and ultimate destination of the cargo was Nas-
sau, and that it was intended to be there sold in open market
by the agent of the owners.
<^ This evidence consisted of the testimony of the agent of
the claimants at Nassau to that effect, certain letters from the
claimants to said agent proved by him, and general proofs
showing that there was at Nassau a market for the various
kinds of merchandise constituting the cargo of the vessel. .
^^ Neither of the claimants for the cargo placed himself upon
the stand to testify as to the actual destination or the intent
of the owners in relation to it. The claimant Begbie was
examined as a witness in behalf of Mr. Biley, the claimant in
No. 442, and on his examination in chief testified merely that
the cargo of the Springbok was to be discharged at Nassau;
that there was no agreement for the continuance of the voy-
age, or for the employment or engagement of the vessel after
her arrival at Nassau ; and that the captain of the vessel knew
nothing of the ownership of the cargo. On cross-examination
he declined to answer as to whether he was, iu the years 1862
or 1863, engaged in blockade-running speculations, and whether
he was, at the time of her capture, the owner of the Gertrude
or her cargo (this being the vessel referred to in the report of
the case in the Supreme Court, and the proofs upon the con-
demnation of which were invoked in the case of the Springbok).
"On the part of the United States evidence was given show-
ing both the firm of S. Isaac Campbell & Co. and Begbie
actively and largely engaged in blockage-running ventures,
and in supplying by contract the Confederate Government with
military sux)plies. These proofs included original contracts
and letters between the claimants S. Isaac Campbell & jJo.
and the Confederate secretary of war, and other officials, show-
ing contracts by that firm, running through the years 1862 and
1863, for cannon, rifles, swords, accoutrements, gunpowder,
shells, clothiug, etc., in large quantities, and delivery of the
same to the Confederate government under such contracts to
the amount of several hundred thousand pounds. Also evi-
dence showing the claimant Begbie a contractor with the Con-
federate government for the establishment of lines of fast
^
3930 INTERNATIONAL ARBITRATIONS.
steamers, to run in the service of that govemment between
the blockaded ports of the Confederate States and ports in the
West Indies.
^^On the part of the claimants it wascon-
^'^^^Jll^f^ *^ tended that the proofs in the prize court failed
to sustain the conclusions of the district court
that the vessel ^was knowingly laden in whole or in part
with articles contraband of war, with intent to deliver such
articles to the aid and use of the enemy,' that the true desti-
nation of the ship and cargo was not Nassau, a neutral port,
and for trade and commerce, but some port lawfully block-
aded by the forces of the United States, and with intent to
violate such blockade, and further that the papers of the
vessel were simulated and false. That they also failed to sus-
tain the conclusions of the Supreme Court, ^ that the cargo was
originally shipped with an intent to violate the blockade, that
the owners of the cargo intended that it should be transshipped
at Kassau into some vessel more likely to succeed in reaching
safely a blockaded port than the Springboky that the voyage
from London to the blockaded port was as to cargo both in
law and in the intent of the parties one voyage, and that the
liability to condemnation, if captured during any part of that
voyage, attached to the cargo from the time of sailing.'
The counsel for the claimants further contended that the
proofs filed for the first time before this commission conclu-
sively rebutted these conclusions of each of the prize courts,
and established the ultimate destination of both ship and
cargo to be Navssau, the cargo to be there sold in open market.
''The counsel called attention to an error in the opinion of
the Supreme Court in stating sixteen dozen swords and ten
dozen rifie bayonets as forming part of the cargo of the l^jmng-
boky when in fact the proofs showed the vessel to have carried
only one sample case containing one dozen cavalry swords and
one dozen rifle bayonets; and to the fact that, on the sale of
the cargo, the entire proceeds of the swords and bayonets and
of the army and navy buttons, were only j?270 out of the gross
proceeds of the entire cargo of nearly $l-^50,(M)(); and that,
including the army blankets, saltpeter, and all that i>ortion of
the cargo which could be regarded for any purpose as quasi
contraband, the proceeds of such alleged contraband goods
were less than one per cent of the proceeds of the entire cargo.
He urged that the judgment of the Supreme Court sustained
PRIZE CASES. 3931
^extreme pretensions of belligerent right to sabjagate neatral
commerce to its necessities,' which ought not to be sustained
by this international tribunal; that, to sustain the doctrine of
liability to capture on the theory of < continuous voyjige,' it
must appear that the cargo was intended as a part of the orig-
inal and planned adventure to be carried from the neutral port
to the enemy's port; that the extreme doctrine in this regard
had been stated by the Supreme Court in the case of the Ber-
mvda (3 Wallace, 515), as follows:
" ^A voyage from a neutral to a belligerent port is one and
the same voyage, whether the destination be ulterior or direct,
and whether with or without the interposition of one or more
intermediate ports, and whether to be performed by one vessel
or several employed in the same transaction and in the accom-
plishment of the same purpose.'
"That the measure of this doctrine, as applied by the
Supreme Court to the case of the Bermuda, was as follows:
" 'What has already been adduced of the evidence satisfies
us completely that the original destination of the Bermuda
was to a blockaded port; or, if otherwise, to an intermediate
port, with intent to send forward the cargo by transshipment
into a vessel provided for the completion of the voyage.'
" That, with the doctrine of continuous voyage as thus lim-
ited and defined, nothing in the case of the Springbok involves
any necessary controversy; but that this doctrine ought not
to be extended so as to make guilty a trade between neutral
I)orts to which the intercepted voyage was actually and really
confined, by surmise, conjecture, or moral evidence not of a
further carriage and further carrier, but only of a probability
that such supplementary further carriage and some supplemen-
tary further carrier may or must have been included in the
original scheme of the commercial adventure. That such a
fiction of continuous voyage for the case of all trade between
neutral ports, which has its stimulus from the state of war,
made the belligerent prize court master of neutral commerce,
and in fact established a paper blockade of the neutral ports
in question, and left their commerce at the mercy of the bel-
ligerent. That the whole history of prize jurisdiction on the
doctrine of continuous voyage shows that the province of prob-
able reasoning has been confined to the question of intent,
while the corpus delicti — the voyage to the enemy port — must
be proved with the same definiteness of vehicle, port, and proc-
ess of execution as is confessedly essential when the voyage is
direct and simple. i
3932 INTERNATIONAL ARBITRATIONS.
" That the original capture of the Springbok was wholly un-
justifiable; that the visitation and search disclosed nothing
which rendered her voyage amenable to further molestation;
that there was nothing in the vessel, her cargo, or her papers,
her position, or the circumstances of her capture, justifying
the cruiser in sending the vessel into port for libel, on the
speculation that it might be that the cargo was to go forward,
and if so, that fact perhaps might be provable; that it was a
marked case of speculative seizure and detention, not upon
indications which the visit and search at sea disclosed, but for
the purpose of a visitation and search in the prize courts
for independent, extraneous, and argumentative grounds of
suspicion.
<' That the trial in the prize court violated the essential prin-
ciples of the prize jurisdiction as established between bel-
ligerents and neutrals, and in which the latter find the limits
of their exposure and submission. That the rule of the prize
courts, that condemnation could only be justified upon the
proof furnished by the vessel itself, her papers, and cargii,
and the depositions of those on board, is not a mere matter of
practice or form, but is of the very essence of the administra-
tion of prize law. That, accordingly, the invocation by the
captors of the papers from the cases of the Oertrude and the
Stephen Hart as part of the primary proofs on which to con-
demn the Springbok and her cargo, was unprecedented, ac-
knowledged by the Supreme Court to be irregular and not in
accordance with the rules of proceeding in prize, and was not
a mere irregularity in form, but was subversive of the princi-
ples of prize jurisdiction. ^
"That the passing of condemnation without giving the
claimants an opportunity for further proof was a manifest in-
justice, and that tlie absolute condemnation without such
opportunity for further proofs was contrary to the rightful
system of prize jurisdiction.
" That the presence of the trivial amount of contraband (as
held by the prize court) could not be regarded either as evi-
dence of its own destination or of that of its accompanying
innocent cargo to an ulterior market, nor as ground for con-
demnation independent of the question of intended breach of
blockade; citing on this point Dr. Gessner's Droit des Neutres
sur Mer, p. 122, as follows:
^< ^ It is wrong to seize contraband goods in a neutral vessel
PRIZE CASES. 3933
when tbey are in sncb small quantities that their inoffensive
character is thereby established. The bona fides is a qaestion
to be determined by all the circumstances of the case^ among
which the quantity is a very material ingredient.'
^< In addition to the above, the counsel for the claimant cited
the following:
"The letter of Sir Wm. Scott and Sir John NichoU to Mr.
Jay, 3 Phillimore, 551 ; Story on Prize Courts (by Pratt), pp.
3 to JO, 17, 18, 24 to 26; Wheaton's Elements, part 4, c. 2, § 15;
Trumbull's Beminiscences of his own Times, 193; the decision
of the Geneva Tribunal upon the case of the Florida^ acquit-
ted in the vice-admiralty court at Nassau on the charge of
violation of the neutrality act of Great Britain ; the Polly ^ 2
Eob. 361; the Maria, 5 id. 635; the William^ id. 385; the
Thomyris, Edwards's Reps. 17; 3 Phillimore, 358; 5 Bob. 334.
" On the part of the claimants of the vessel it was con-
tended, in addition to the positions above stated, that it was
found by the Supreme Court that her papers were regular and
her voyage a bona fide one between London and Nassau; that
the papers were all genuine, and there was no concealment of
any of them, and no spoliation; that the owners were neu-
trals, appeared to have^ no interest in the cargo, and could
have had no knowledge of its alleged unlawful destination ;
that these conclusions of the Supreme Court upon the evidence
before it were strengthened and completely sustained by the
additional testimony taken before the commission ; that the
grounds on which the Supreme Court denied costs and dam-
ages to the claimants of the vessel, to wit, misrepresentation
by the master on his examination as to his lack of knowledge
of the grounds on which the capture was made, and the fact
that he had signed bills of lading which did not state truly
and fully the nature of the goods contained in the bales and
cases mentioned in them, were unsustained as matters of fact
by the evidence, and, even if sustained, were in themselves
not of the least significance, and did not and could not affect
the interests or issues involved in the capture; that, so far as
the vessel and her owners were concerned, her voyage was
honest, her papers fair, and the good faith of the charter party
absolute and unimpeachable, and the declarations and conduct
of her captain not so obnoxious to just criticism as to justify
the intiiction of punishment upon the innocent owners.
3934 INTERNATIONAL ARBITRATIONS.
^^On the part of the UDited States it was
tT^^tatoi. * niaintained that the coDclasions arrived at by
the Supreme Court as above stated, and upon
rhich the decree of that court condemning the cargo was
based, were fully sustained by the evidence before the prize
court. That the claimants of the cargo had, by the judgment
of the Supreme Court, full notice of the grounds on which the
cargo was condemned, those grounds relating principally to
their own previous conduct in furnishing military supplies to
the Confederate Government and in running the blockade,
and to the presumption raised by the circumstances of the
case as to their own design and intention in regard to the
destination of the cargo. That, notwithstanding this notice,
they had failed to avail themselves of the opportunity afforded
them before the commission to testify as to the facts and
conclusions thus found by the Supreme Court; and that in
the case of Mr. Begbie, when placed ui)oii the stand invol-
untarily, he had refused to answer concerning these very-
matters. That this failure and refusal to testify on the part
of the claimants was to be taken as in effect an admission of
the correctness of the conclusions of the court.
" That by the evidence adduced before the commission the
fact was fully established that all these claimants of the cargo
were extensively engaged in running the blockade, and also in
furnishing military supplies to the enemy. That the facts thus
proved went strongly to confirm the conclusions of the court
that the cargo was destined and intended for transshipment
to and delivery in the Confederate States, and not for a market
at Nassau. That they also established that these claimants
legally and morally were not neutrals, but enemies of the
United States actually engaged in the prosecution of the war
against those States; and that, as such, their property on the
high seas was liable to capture without regard to the question
of blockade. That the question of national character in such
case was always a question of the individual national char-
acter of the owner, and not of his national character as
established by paramount allegiance, citing the Anna Catherinay
4 Rob. 119; the Vigilantia, 1 id, 1; the VriendHclmp^ 4 id.
166, and the authorities cited in 3 Phillimore, 605, 606. That
these proofs also precluded the claimants from a standing be-
fore this commission as neutral British subjects. That as to
the vessel, the capture and condemnation of the cargo being
PRIZE CASES. 3935
lawfxil, the seizure of the vessel and taking her into port was
also lawful as the sole nieaus of reaching the cargo which was
lawful prize, and that in such case the vessel was not entitled
to costs or damages.
^^The commission unanimously disallowed
claim for the vessel, No. 442, they unanimously
awarded to the claimant the sum of $5,065. I am advised
that this award was made in respect of the detention of the
vessel from the date of the decree of the district court to the
date of her discharge under the decree of the Supreme Court,
the latter decree having established that the vessel should
have been discharged by the decree of the district court.''
American and British Claims Commission, Article XII. of the treaty of
May 8; 1871, Hale's Report, 117. See also Howard's Report, 138.
6. Oaptube in Neutral Waters.
"The Sir William Peel, Edwin Gerard, Nq.
Ca«iofthe"8irwn-243 claimant for himself and insurers and
ham Feel.
underwriters.
" This case and the three following cases, of the Bashing
Wave, the Volant, and the Science, were intimately connected
in character and circumstances, and were argued and sub-
mitted together. The Sir William Peel was captured by a
United States war vessel on the 11th of September 1863 while
lying at anchor at the mouth of the Rio Grande, tlie stream
dividing the territories of the United States from those of
Mexico, and ui)ou which, about forty miles from its mouth, lay
on the right bank the Mexican port of Matamoras, and on the
left bank the United States port of Brownsville, tben in pos-
session of the Confederate forces. The place at which she lay
was held by the United States prize courts to be within Mexican
and neutral waters. She was taken by the captors into the
port of New Orleans, there libeled in the district court of the
United States, and on the 6th of June 1864 a decree of resti-
tution was rendered in that court, certifying reasonable cause
of seizure, and providing Hhat the question as to costs and
expenses be reserved for further action.' From this decree
the United States appealed to the Supreme Court. Subse-
quently, on the hearing in the district court of the question
3936 INTERNATIONAL ARBITRATIONS.
thus reserved, the following decree was made on the 3d of
June 1865:
^^ ^On the preliminary trial of this caase, considering that
the position of the Sir William Feelj when captored, was a
matter of doabt, and with a view to set this question at rest,
the coart allowed the captors farther proof, and extended to
the claimants the same privilege if they chose to accept jt.
^^ <The result of the whole testimony satisfied the mind of
the court that the Sir Williajn Peel was captured when anchored
south of the line dividing the waters of the Bio Grande, and
when, therefore, she was in neutral waters. Ou that ground
the court decreed her restitution; but entertaining grave
doubts as to the object of her voyage, so grave, inde^, that,
but for this consideration, that she was captured in neutral
waters, the court should have decreed her condemnation, it is
now ordered and decreed that the costs and charges conse-
quent upon the capture be paid by the claimants, and that
damages be refused.'
<^ From this decree the claimants appealed to the Supreme
Court of the United States. Both appeals were heard together
iu the Supreme Court, and that court affirmed the judgment of
restitution, including its certificate of reasonable cause of seiz-
ure, rendered June 6, 1864, and reversed the decree of 3d of
June 1865, charging the claimants with costs, and remanded
the case to the district court, with directions that no costs or
expenses lie allowed to either party as against the other. The
case in the Supreme Court is reported in 5 Wallace, 517 to 536.
The opinion of that court, delivered by Chief Justice Chase, is
as follows:
'^ < Regularly in cases of prize no evidence is admissible on
the first hearing, except that which comes from the ship, either
iu the papers or the testimony of persons found on board.
" ' If upon this evidence the Ciise is not sufficiently clear to
warrant condemnation or restitution, opportunity is given by
the court, either of its own accord or upon motion and proper
grounds shown, to introduce additional evidence under an
order for further proof.
" 'In the case now before us some testimony was taken pre-
paratory to the first hearing, of persons not found on board the
ship, nor, indeed, iu any way connected with her.
*' ' This evidence was properly excluded by the district judge,
and the hearing took place on the proper proofs.
" * Upon that hearing an order for further proof was made,
allowing the libellants and captors on the one side, and the
claimants on the other, to put in additional evidence; and such
evidence was put in accordingly on both sides.
** 'The preparatory evidence on the first hearing consisted of
PRIZE CASES. 3937
the depositions of the master of the ship, the mate, aud one sea-
man. No papers were produced, for none were foand on board ;
a circumstance explained by the statement of the master, that
all the papers belonging to the vessel, except the lightermen's
receipts for the cargo, were with the English consul and the
consignees of the sUp at Matamoras.
^^ <The depositions established the neutral ownership of the,
ship and cargo. They proved that the Sir William Peel was a
British merchantman ; that she had brought a general cargo,
no part of which was contraband, &om Liverpool to Mata-
moras; that this cargo, except an inconsiderable portion, had
been delivered to the consignee at the latiter port; that the
cotton found on board was part of her return cargo; that it
was owned by neutrals, and had a neutral destination; and
that the ship, when captured, was in Mexican waters, well
south of the boundary between Mexico and Texas.
"^This proof clearly required restitution. The order for
further proof was probably made upon the rejected depositions,
which, though inadmissible as evidence for condemnation, may
have been ^Slowed to be used as affidavits on the motion for
the order.
" ' The further proof, when taken, was conflicting.
^^ ^The weight of evidence, we think, put the vessel, at the
time of capture, in Mexican waters; but if the ship or cargo
was enemy property, k)r either was otherwise liable to con-
demnation, that circumstance by itself would not avail the
claimants in a prize court. It might constitute a ground of
claim by the neutral power, whose territory had suffered tres-
pass, for apology or indemnity. But neither an enemy, nor a
neutral acting the part of an enemy, can demand restitution of
captured property on the sole ground of capture in neutral
waters.
" * We must therefore look further into the case.
^^ ^ There is some evidence which justifies suspicion. Several
witnesses state facts which tend to prove that the Peel was in
the employment of the rebel government, and that part, at least,
of the cotton laden upon her as return cargo was in fact rebel
property.
"^ There are statements, on the other hand, which make it
probable that the Peel was in truth what she professed to be,
a merchant steamer, belonging to neutral merchants, and noth-
ing more; that her cargo was consigned in good faith by neu-
tral owxjers for sale at Matamoras, or to be conveyed across
the river and sold in Texas, as it might lawfully be, not being
contraband; that the cotton was purchased by neutrals and
on neutral account, with the proceeds of the cargo or other
money.
" *In this conflict of evidence we do not think ourselves war-
ranted in condemning, or in quite excusing, the vessel or her
cargo. We shall therefore affirm the decree by the district
3938 INTERNATIONAL ARBITRATIONS.
court, and direct restitution, without costs or expenses to either
party as against the other.'
^^This opinion sufficiently states the facts of the case as
appearing by the evidence in the prize court, and those facts
were not substantially changed by any evidence taken before
the commission.
"The claim before the commission was prosecuted by Edwin
Gerard as assignee of the owners of the vessel and cargo, and
as attorney in fact for the insurers and underwriters, some one
hundred and fifty in number. The vessel and cargo were fully-
insured against capture as well as other losses; and upon the
capture the owners abandoned vessel and cargo to the under-
writers, who accepted the abandonment and paid as for a total
loss. Pending the case in the district court, forty bales of cot-
ton, part of the cargo, were sold by order of the court, and the
proceeds paid into the registry of the court. And pending
the case on appeal in the Supreme Court, the vessel, her tackle,
stores, etc., and the remainder of her cargo having been ap-
praised at the sum of $857,642, United States currency, were,
by order of the court, delivered to the claimants on their fur-
nishing stipulations in the said appraised value with security.
The claimants claimed the sum of £35,314 16s. 9d., the sum of
the amounts paid by the insurers to the assured less the net
salvage obtained by the sale of the vessel and cargo, and the
further sum of $369,000, demurrage from the 11th September
1863 to the loth September 1864, besides interest on both said
sums.
"The counsel for the claimant filed, in No.
Aig^ent or e ^^^^^ ^ general argument applicable to the cases
of the Sir WUliam Feci, the Dashing Wave^
the Volant, the Science^ and the Geziena Heligonda. In this
argument he uiaintained that the Rio Oraude being the com-
mon boundary between Mexico at peace and Texas at war
with the United States, and the navigation of the river being,
by the law of nations as well as by the treaty of Guadalupe
Hidalgo, free and common to the citizens of both r^ublics,
the United States could not lawfully blockade that river so
as to interfere with the fiee ingress and egress of neutral
vessels engaged in trade with Matamoras, or with the right
of such vessels to lie at anchor in the roadstead at the mouth
of the Rio Grande, while engaged in lawfully discharging or
receiving cargoes on neutral account through the custom-house
PRIZE CASES. 3939
at Matamoras, or so as to interfere with inland trade carried on
across tbe Rio Grande, from Mexico to Texas or from Texas to
Mexico. That the British trade with Matamoras was a legiti-
mate trade according to established principles of public law.
That these doctrines were fully recognized by the Supreme
Court of the United States in the case of the Peterhoff (5 Wal-
lace, p. 28), and by the courts of the United State in other cases,
notably that of the Labuan in the district court of the south-
ern district of New York. That it had also been fully recog-
nized by the Secretary pf State of the United States, in the
diplomatic correspondence with the British legation, concern-
ing the cases of the Labuan^ the Magidenne^ the Peterhoffj the
Sir William Peel, and other cases; and by the legislative
authorities of the same in ap[)ropriations for payment of the
awards in the cases of the Labuan^ etc.
"That, notwithstanding the recognition by the courts and
executive and legislative authorities of the United States of
these principles, in practice they had been disregarded, and
British merchant vessels, whether found on the high seas and
destined to the mouth of the Rio Grande, with cargoes con-
signed to Matamoras, or anchored oft' the mouth of the river
and engaged in good faith in tbe discharge of neutral cargoes
for Matamoras, and in taking on board cargoes purchased at
that port on neutral ivccount, had been subjected to capture
and adjudication as maritime prize.
" That these captures had been tbe subject of earnest but
temperate remonstrance on the part of Her Majesty's govern-
ment, and were regarded as violations of the just maritime
rights of Great Britain, and as assumptions of belligerent
power not warranted by the law of nations.
"That the claims arising out of these captures were among
the most important in the contemplation of Her ^Majesty's
government in the establishment of t)ie Joint High Commis-
sion, and by that commission, in the provisions of articles 12
to 17 of tbe treaty providing for tlie establishment and con-
duct of this commission. That this commission had full juris-
diction of the claims in question, ami to review and overrule
the final judgments of the prize courts of last resort of the
United States.
" That by the terms of the treaty, and of the ' solemn dec-
laration' subscribed by the commissioners pursuant to the
provisions of the treaty, they were to decide each and all of
5027— VOL. 4 45
3940 INTERNATIONAL ARBITRATIONS.
the claims ^ according to justice and equity.' That this pro-
vision gave to the present commission a broader and more com-
])rehensive power tlian was given by the seventh article of the
treaty of 1794 between the United States and Great Britain
(S Stats, at L. 121 ) to the commission provided for by that arti-
cle, which was required to decide the claims referreil to it
according to * justice, equity, and the laws of nations.' That
the omission of the last named element of the prescribed rule
of conduct from the present treaty was significant. That
under the present treaty the judgments of the American prize
tribunals were to be tested in each ca«e by this commission
according to the principles of ^justice and equity' only. That
'whether the law of nations justifies those decisions or not,
unless they, are also justified in the conscientious judgment of
the commissioners by justice and equity, the comi)ensatioQ
which they fail to give must be awarded to the parties.' That
*the inquiry is not limited to the question whether the law of
nations entitled the claimants to compensation, but extends
beyond that narrow range, and its broad scope is whether the
parties are equitably entitled, under all the circumstances sur-
rounding the cases, to receive indemnification for their losses.'
That it was the intention of the fraiuers of the treaty to con-
fer upon this commission ' a more extensive jurisdiction, and
greater power to do justice than was exercisable by the prize
courts of the United States deciding according to the law of
nations.' That the technical rule of the prize courts, that
'probable cause' not merely excuses, but in some cases justi-
fies, a capture, is a hard rule, ' admitted to be opposed to the
fundamental ideas of justice and e(iuity,' and 'only to be jus-
tified upon grounds which justify the extreme severity of the
other operations of war.' That therefore this commission was
not bound to refuse damages in cases of restitution to the
claimants, even 'if they should think that the appellate prize
court was warranted in its decision that there existed, in the
sense of the prize law, probable cause of capture.'
"That if, however, itshouM be held that the only inquiry
to be instituted by the commission in such cases is, ' whether
there were such reasonable grounds of suspicion as constitute
what is technically called i)robable cause of capture,- the com-
missioners should nevertheless adjudicate according to their
own judgment of the facts and the law constituting the foun-
dation of x>robable cause, ' unembarrassed by the special and
PRIZE CASES. 3941
U'chnieal rules of the prize code.' That though the commis-
sion is not therefore bound by the principles held by the prize
courts in their adjudications, but has a larger and more equit-
able jurisdiction, yet the decisions of prize courts of the high-
est authority have established the duty of condemning captors
in costs and damages where they have unjustly interfered with
tlie operation of lawful neutral commerce. In this connection
the counsel cited the cases of the IJlizabethj I Acton. 10; the
OsUee, 9 Moore's P. C. U. 150; the GerasimOy 11 id. 88; the
Newport J id. 187.
^*In answer to these proiwsitions in the gen-
^"^t^ Stotes*^* ®^*^ argument the counsel for the United States
fully admitted the propositions as held and
recognized by the judicial, executive, and legislative authori-
ties of the United States, that the hoiui fide trade with Mata-
nioras was a legitimate trade; that the United States could
not lawfully blockade the mouth of the liio (zrande or the port
of Matamoras, or any other Mexican port, nor interfere with
the legitimate ingress or egress of neutral vessels engaged in
trade with Matamoras, or with the right of such vessels to lie
at anchor in the roadstead at the mouth of the Rio Grande
while engaged in the bpnafide discharge or receiving of neutral
cargoes for or from that port.
^* He denied that in jtra^tice the United States had violated
these principles or undertaken to assert rights inconsistent
with them, but maintained that, on the contrary, the State
Department of the United States, in its diplomatic corre
spondence, had recognized their validity; insisting only that
the question of the application of these principles to the facts
of each particular case was to be determined by the regular
prize tribunals, which might be safely trusted to do entire
justice in every case.
''That the decisions of those courts m the various cases
referred to by the counsel for the claimant fully recognized
those principles and applied them to the facts appearing in
civch case; and that in the disposition not only of those cases,
but generally of all tlie prize cases arising daring the war,
those courts had carefully adhered to the principles of inter-
national law as recognized in the prize courts of all civilized
countries, and had extended to neutral vessels and cargoes a
degree of i)rotection, to say the least, quite as ample and com-
l)lete as that afforded by the i)rize courts of Great Britain
3942 INTERNATIONAL ARBITRATIONS.
under the learned and widely known and recognized decisions
of Sir William Scott and bis successors in those courts.
'^He admitted fully the jurisdiction of the commission, and
their power and duty under the treaty to review the iinal judg-
ments of the prize courts of ultimate resort of the re8i>ective
nations as not coiu'lusive ui)on the respective governments
which mi^ht intervene on behalf of their subjects against the
judgments of those courts, such jurisdiction having been long
since fully established by the direct decision of the commission
upon that question and not having since been disputed.
"As to the rules and princii)le8 by which the commission
were to be governed in their decisions upon these cases, he
maintained that the rule prescribed by the treaty, that the
commissioners should 'im])artially and carefully examine and
decide, to the best of their judgment and according to justice
and equity,' had in no resi)ect abolished or changed those
well-settled principles, in accordance with which the tribunals
of the civilized world have been accustomed to decide upon
the validity of captures and the respective rights of belliger-
ents and neutrals in relation to them. That 'justice and
equity' were not to be attained by a disregard of judicial prec-
edents and established i)rinciples of judicial i)roceeding.
''That to adopt the doctrine propo\in(led by the counsel for
the claimant was to substitute the mere fancy or caprice of a
tribunal acting without guidance or authority for those sound
rules established* and followed by judicial tribunals, in the
light of the learning; and experience of ages, for* the very
furtherance of 'justice and ecpiity.' That true 'justice and
equity' are recognized by all judicial tribunals, municipal or
internationar, as attainable only by well-delined and settled
rules and ])rinciples of general application. That if this idea
is lost sight of, substantial justice as well as substantial equity
is at an end; and the rights of parties are committed to the
absolute and uncontrolled will and caprice of the judicial
officer, instead of the protection of the law.
"That while, therefore, the right of the commission to sit in
judgment ui)on the validity and correctness of the judgments
of the prize courts of the United States upon these cases is
not now (juestioned, such validity and correctness are to be
determined only in accordance with the settled princiides of
prize law, as recognized by the two countries.
"That in reviewing the judgments of the highest appellate
t>Rizte cASfis. 8948
courts of either of the two countries, high contracting parties
to the treaty, the high reputation of those courts respectively,
the weight uniformly given to the decisions of each by the
other and the rules of international comity and mutual respect
dictate that such judgments are not to be rashly or hastily
overruled or reversed ; but only on a clear showing of a viola-
tion of the rules of international law in re viinime dubia. That
the question to be decided in these cases is-whether injustice
has been done to the subjects of Her Britannic Majesty by the
judicial tribunals of the United States^; and that the commis-
sion certainly can not find that such injustice has been done,
unless they find that the well-settled principles of international
law have been violated by those tribunals.
"In answer to the proposition of the claimant's counsel, that
the rule of the prize courts disallowing damages to the claim-
ant where ^probable cause' appears for the capture, is one of
extreme severity as against the lieutral trader, 'opposed to the
fundamental ideas of justice and equity,' and 'a hard rule,
admitted to be such by all writers on the law of nations,' the
counsel for the United States cited the language of Dr. Lush-
ington, in the case of the Leucade (2 Spinks, 236), as follows:
'' ' Lord Stowell administered the prize law on great and
comprehensive principles. His object was that, on the whole,
equal justice should be done to the rights of the belligerent
and the just claims of neutral nations; but he did not seek in
each particular case to do the most perfect justice. Many pas-
sages in his judgments might be cited to show this; whereby
he declared that, though there might be hardships in particu-
lar cases, both to captors and especially neutrals, yet, on the
whole, the balance was in favor of the neutral rather thau
against him. Lord Stowell used to say, though blockade was
a hardship on a neutral, and the right of search was a hard-
ship on a neutral, yet it was to be recollected the whole tnvde
was always open to them — the carrying trade in time of war.
He used always to say, and rely greatly on that rule of law,
that, in the first instance, the case should be heard on the
evidence of the claimants themselves, namely, the ship's papers
and depositions.
'' ' In the case of tlie Diligent la (I Dods. 404), where the cap-
tors complained of what Lord Stowell was about to do, Lord
Stowell made the same jinswer. He told them, though they
might complain in particular instances, yet he must adhere to
the general principle, tliougli tlie consequences might press
hard upon them. Now, no person more readily acknowledged
the truth of the principle, that a claimant should be indemni-
fied for a capture made without probable cause, than Lord
3944 INTERNATIONAL ARBITRATIONS.
Stowell; no one more powerfully manifested it; but that will
necessarily presuppose that the court is in possebsion of the
truth.
'*'It is equally contrary to common justice that a captor
should be mulcted in costs and damages where he has faith-
fully performed his duty, nnd had, in truth, adequate cause
for the seizure. Yet tin's cause of seizure might not appear on
the face of the depositions and ship's papers. So it might be
in blockade cases, and in numerous others which might be
stated.'
''In the case of the Sir William Peel the following addi-
tional points were made on behalf of the Tnited States:
" 1 . That the vessel and cargo not having been charged with
costs under the final decree of the Supreme Court, the only
question before the commission was as to the right of the
owners to damages; that the claimants were in no position to
make such claim before the commission; that any right to dam-
ages in the i)rize courts was barred by the first decree of the
district court of Gth June 1864, which adjudged reasonable
cause of seizure, and that from this decree or from any part of
it the claimants had never appealed; that the * question as to
costs and exi)enses' reserved by that decree was plainly the
question only whether costs and expenses should be allowed
against the claimants, their right to claim costs and expenses
against the captors being barred by the certificate of 'reason-
able cause of seizure' contained in the same decree; that the
claimants, having failed to appeal from so much of this decree
as certified reasonable cause of seizure, must be considered,
m the language of the letter of Sir William Scott and Dr.
Nicholl to Mr. Jay (3 Philliniore, 554), to have 'acknowledged
the justice of the sentence in that respect,' and that within
the rule of practice already settled by the commission the
claimants, having neither appealed nor rendered any reason
for not hiiving appealed, their claim must be disallowed; that
the only effect of the second decree of the district court of
3d June 18G5, from which the claimants did appeal, was to
charge the claimants with the costs and charges of the captors,
and that on their appeal from this decree they had had lull
relief by the judgment of the Sui)reme Court; that it had
never been possible for the Supreme Court to award damages
in favor of the claimant lia<l they been so disposed, such dam-
ages being barred by the lertificate of probable cause in the
first decree ot Gth June 18(>4 from which the claimants had
PRIZE CA8E8. 3945
not appealed; that the claimants had therefore no standing
before the conuuiasion to claim damages.
"2. That the proofs before the prize court fully sustained
the finding of that court of probable cause; and that the depo-
sitions of Clark and Haggard, taken in the district court, but
rejected by that court on the i)urely artiticial and technical
rule that such evidence must come in the first instance from
the vessel herself and those on board of her, were here com-
petent evidence under the terms of the treaty, and entitled to
be weighed by the commission without regard to such artificial
rule of exclusion; and that those depositions not only greatly
strengthened the case made before the prize court as one of
probable cause, but in connection with the other proofs would
have amply warranted a decree of condemnation.
"3. That the fact that the vessel was taken in neutral
waters in no respect changed the case as to the resiiective
rights of captors and claimants. That in such case it was only
the neutral power whose waters had been violated that had
cause of complaint; and such power only could be heard to
raise the (piestion of violation of her waters. That if the
United Stiites by this capture had violated any rights of Mex-
ico, that was a (juestion to be settled between the United
States and Mexico. That so far as the questions between
these dainnints and the United States were concerned, the
case stood in all respects the same as if the vessel had been
captured upon the high seas.
^'In support of this point the counsel of the United States
cited the l^uriHsima Conceju-ion, G Kob. -15; the Etntsco, 3 id.
31; the Ttree Gebroeder 8, id. 1G2; the Eliza Anfie, 1 Dodson,
244; the IHligentia, id. 412; the Anne, 3 Wheat. 447; 2 Twiss,
448; the Anna, 5 Rob. 373; the Vrow Anna Catlierina, id. 15.
^'4. That ])y abandonment, acceptance of the same, and pay-
ment as for a total loss, the entire right to any and all recla-
mation for damages or for the proceeds of the vessel passed
from the owners of the ship and cargo to the insurers, and this
irrespective of the question of the illegality of the contract of
insurance, the contract being an executed one by the volun-
tary act of the parties. That these insurers were not to be
taken as parties to the memorial, which was that of Mr. Gerard.
That Gerard himself had derived by his assignment from the
owners no title, their claims having vested in the insurers.
And that if the assignment to him would otherwise have con-
3946 INTERNATIONAL ARBITRATI0N8.
veyed any interest, it was void as a champertous contract by
which (leranl, an attorney, without any previoas interest in
the transaction, had purchased the claim as a matter of si)ec-
ulation and for the purpose of its prosecution against the
United States. That by the law of England the purchase of
a chose ill action by an attorney for the pui-i)ose of prosecution
was illegal ; that the same rule prevailed in most, if not all, of
the United States; and that in practice it ought to prevail in
international law. That such champertous purchases of claims,
void by the common law of both countries, should not be recog-
nized as lawful transactions, or be permitted as the basis of
claims to be i>rosecnted by one of those governments against
the other.
''5. That the contracts of insurance by these insurers with
the assured wen* deliberate contracts to indemnify British
subjects for the consequences of att4.*ini)ted violation of the
belligerent rights of the United States; that such contracts,
when sought to he enforced in the courts of the United States,
would be held void by those courts: that like contracts, in
relation to attempted violation of the belligerent rights of
Great Britain, if prosecuted in the courts of that kingdom,
would be held void by her courts; that therefore in an inter-
national tribunal constituted by solemn treaty between the
two governments, the comity of nations and a proper regard
by one friendly government for the rights of another should
precUide the admissibility of such claims. That these con-
tracts of insurance were distinguishable from ^war risks' rec-
ognized by all nations as legitimate subjects of insurance, and
such as were discussed among the American claims before the
tribunal at Geneva; those were assurances of the merchant
vessels of a belligerent against cai)tnre by their enemy, and
such as are recognized in all wars of maritime nations as a
permissible and necessary means to the ])reservation of any
commerce whatever to a belligerent; but these are deliberate
contracts to indemnify a neutral who, by carefully excluding
the 'free from capture' clause, admits that he is engaged in
an attempt to violate the belligerent rights of a friendly nation.
That though the violation of blockade by a neutral is not held
by international law to be strictly a crime, it is an unfriendly
act, prejudicial to the chara(;ter and interests of the neutral
government of which the violator is a citizen, and to her hon-
est and legitimate tniders, and (calculated to ])romote discord
PRIZE CA8E8. 3947
and hostility between friendly nations. That a contract to
indemnify the citizen of a neutral government against the law-
ful consequences of his own wrongful act against a friendly
government, should never be made a ground of reclamation
by the government of the wrong-doer against the injured gov-
ernment, nor be countenanced by an international tribunal
organized as a means of amicable settlement between two such
governments.
"On the part of the claimants it was con-
_ ®' ®' ® tended in answer that the Supreme Court of
Claimanti.
the United States had in effect passed upon
all the questions involved in the prize court, and had finally
adjudged that the claimants should not have damages against
the captors; and had determined that the fact of the capture
having taken place in the waters of Mexico, a neutral and
friendly nation, did not make the capture a wrongful one
as between the captors and the claimants, Mexico not having
intervened. That on the proofs in the case there were no
sucli circumstances of suspicion as to afford probable cause of
capture within the doctrines of the prize courts. That if no
such probable cause within the rules of those courts existed,
it was plain, from the proofs before the commission, that actual
injustice had been done to the owners of the vessel and cargo;
that the vessel was engaged in a legitimate commerce; and
that, according to justice and equity, the chiimants should be
reimbursed for the losses in consequence of the capture ulti-
mately adjudged a wrongful one, even though the capture were
held excused by the doctrine of i)robable cause under prize
law. That the capture of the vessel within the neutral waters
of Mexico was in violation of international law, and absolutely
illegal and void. That the doctrine of the i)rize courts that
such a capture could only be questioned by the government
whose territory had been violated, applied only to the case of
an enemy ship captured in neutral waters and not to the case
of a neutral vessel so captured. That, even if that doctrine
ai)plied in the last-named case, it was only as a technical rule
of the prize courts requiring an intervention there by the gov-
ernment whose territory had been violated, and was not api)li-
cablc in the case of an international tribunal, which should be
<*ontrolled by the consideration that the capture was an illegal
one under international law.
'' The counsel for the claimant cited Dana's Wheaton, §§ 171,
3948 INTERNATIONAL ARBITRATIONS.
420, 428, 429, 430; the Vrow Anna Catherina^ 5 Rob. 18; Law-
Fence's Wheatoii, 215 n, 71.">; Wheaton on Captures (ai>i)eiidix),
341; the ^n/«^', 3 Wlieat. Kep. 435; the Richmond^ d Crancli,
102; the Peter lioffy 5 Wall. 28; the Bermuda, 3 Wall. 557.
''The counsel for the claimant also maintained that the
insurers and underwriters were to be deemed parties to the
memorial by Mr. Gerard, as their attorney in fact; that the as-
si<i:nmeiit to Gerard was a valid one; and that the' contracts of
insurance ^vere also valid and entitled to recognition and pro-
tection under international law.
''The commission (Mr. Commissioner Frazer
Award of the Com- ,. x* \ xi i • j. j ^
. . dissentinff) gave the clannants an award for
mission. '^^ *=*
$272,920. I am advised that the award was
placed by the majority of the commission on the ground that
the capture witliin the neutral waters of Mexico was absolutely
illegal and void, and that tlie claimants were entitled to make
recl«amation on tliat. ground, irrespective of any question of
complaint or intervention on the part of Mexico.
' ' The brig Dashing Wave; Charles Le Qaesne
^^^ w* ,V^^ ^^ ^'^'j ^o- ^^^j claimants for vessel; Edwin
Gerard, No. 244; Simpson & Pitman, Ko. 396;
McDowell & Ilalliday, No. 397; The Thames & Mersey Insur-
an(!e Comi>any (limited). No. 427, and the l^ritisli and Foreign
Marine Insurance (^ompany (limited) et aL, No. 428, claimants
for cargo.
"This vessel was captured wliile at anchor off the mouth of
the Kio Grande on the 5th November 1803; was taken into the
port of New Orleans and there libeled in the United States
district court. A decree was made in that court 16th June
1804 adjudging restitution of the vessel to the claimants; from
which decree the United States appealed to the Supreme Court.
Further proceedings were had in the district court on the
question of costs and damages, and on the 3d June 1865 a
decree was made adjudging that the costs and charges conse-
c|uent ui)on the capture be paid by the claimants, and that
damages be refused to tlieni.
" From this decree the claimants appealed to the Supreme
Court. The Supreme Court affirmed the decree of the district
court restoring the vessel and cargo, but directed that the
costs and expenses consequent ui)on the capture be ratably
apportioned between the vessel and the shiimientof coin here-
inafter named, and that the residue of the cargo be exempted
t'RtZE CASES. d94d
from contribution. The district court det^Tinined, upon the
l>roof8, that the vessel when captured was anchored south of
the lino dividing the waters of the Eio Grande, and was there-
fore in neutral waters.
"The Supreme Court held, on the contrary, that the proofs
clearly showed her to have been anchored north of the division
line above named and within the waters of Texas, then in
possession of the enemies of the United States. The case in
the Supreme Court is reported in 5th Wallace, pages 170 to
178; to which report reference is made for the statement of
the peculiar facts of the case. No proofs were made before
the commission substantially changing the fiicts as there
stated.
"Many of the questions involved in this case were identical
with those involved in the case of the Sir William Peel above
reported, and therefore need not be again stated.
" Edwin Gerard, No. 244, claimed as assignee of the insurers
of Messrs. F. De Lizardi & Co., the alleged owners of 12,000
British sovereigns, a portion of the cargo upon which, together
with the vessel, the cost and expenses consequent upon the
capture were apportioned by the decree of the Supreme Court.
"Simpson & Pitman, No. 39G, and McDowell & Halliday,
No. 397, claimants as owners respectively of parts of the
cargo exempted from contribution by the final decree, claimed
damages by the depreciation of the cargo during its deten-
tion, and for costs and expenses to which they had been
subjected.
"The insurance companies, Nos. 427 and 428, claimed respec-
tively as insurers of i)ortions of the cargo in like manner ex-
empted from contribution and which had been duly abandoned
to them as insurers, and i)ayments made by them respectively
as upon a total loss.
" Upon the two last-named claims of the insurance com-
panies, (juestions were raised on the part of the United States,
as to the validity of the contract of insurance in the same re-
gard reported above in the case of the Sir William Peel, and
also as to the right of the insurance companies to recover in
respect of portions of the cargo owned by persons not appear-
ing to have been British subjects. This last-named question
was subsequently more distinctly raised and passed u[)on in
the case of the Circaftsian, and will be hereafter reported under
that case.
"The commission unanimously disallowed all the claims.
i
3950 INTERNATIONAL AttBlTRAflONS.
*' The brig Volant, John Amy et al.^ No. 388,
Case of the "Volant" claimants for vessel; Edwin Gerard, No. 245,
claimant for cargo.
" This vessel was captured on the 5th November 1863, at the
month of the Eio Grande, taken into the port of New Orleans,
and there libeled. By a decree rendered on the 11th June
1864, the district court condemned the vessel and cargo as law-
ful ])rize. From this decree the claimants appealed to the
Supreme Court, which court reversed the decree of condem-
nation, but held that the capture was justified by 'probable
canse,' and adjudged restitution of the vessel on payment of
costs and charges. The case is reported in the Supreme Court
in 5th Wallace, pp. 179, 180. It appeared that the vessel,
when captured, was anchored within Texan waters.
''The claimants in No. 388 claimed as owners of the vessel
for reimbursement of the costs and charges paid by them,
and for damages by the detention of the vessel.
" Mr. Gerard, in No. 245, claimed, as assignee of the insurers
of the cargo to whom the same had been abandoned, and who
had paid as for a total loss, about $40,000, besides interest, for
depreciation of cargo after the seizure, including the value of
ninety-three cases of brandy, alleged to have been abstracted
from the vessel while in custody of the officers of the district
court.
" The questions involved in respect to this vessel are sub-
stantially covered by the report of the foregoing case of the
Sir William Peel and by the report of the case in 5th Wallace.
"The claim of Amy and others, No. 388, in respect of the
vessel, was unanimously disallowed by the commission.
"In the case of Mr. Gerard, No. 245, the commission made
an award in favor of the claimant for $1,785, Mr. Commissioner
Gurney dissenting. 1 am advised that this award was made
in respect of the brandy abstracted while in charge of the
officers of the district court ; and that the other claims for dam-
jiges in the case were disallowed.
" The bark Science^ Thomas E. Angell and
Caaeof the "Science." others, claimants No. 391.
" This vessel was captured at the same time
and place with the Dashiiuj Ware and the Volant, libeled in
the same court, and the same decrees entered respectively as
in the case of the DasJmuj Wat'e, and the same appeals taken
by the respective parties to the Supieme Court. That court
PRIZE CASES. 3951
affirmed both jiulgineiits of the district court restoring the
vessel aud charii:iiig lier with the costs and expenses of
capture, finding upon the proofs that she was, when cai)tured,
anchored within Texan waters, and that no excuse appeared
for her being there. The case in the Supreme Court is
reported in 5th Wallace, i)ages 178, 179.
^^The counsel for the claimants, in addition to the points
above cited in the case of the Sir William Peti applicable to
this case, contended that the capture was one maile in bad
faith; that the Science had arrived ofi^ the mouth of the Kio
Grande on the 11th August; that immediately on her arrival
she was boarded by an officer of a United States blockading
vessel, who examined her papers and inspected her cargo, aud
permitted her to anchor and discharge her outward cargo and
take on board a large portion of her return cargo; that the
only allegation ma<le by the cai)turing ofiicer was that her
outward cargo had included cloth of the character and descrip-
tion used for Confederate uniforms; that this allegation con-
stituted no ground of capture, and even if originally it might
have afforded probable cause of capture, it certainly could
not after the vessel had been allowed to lie three months in
the ofiing aud take on board a valuable cargo of over 300
bales of cotton; that the fnct of her being at anchor within
Texan waters, if it existed, did not of itself constitute probable
cause, there being no evidence in the case to indicate an inten-
tion of violation of the blockade; that, by international law
and under the treaty of Cluadalupe Hidalgo, the roadstead at
the mouth of the Kio Grande was an open roadstead, where
neutral vessels trading with Matamoras had a right to lie at
anchor, whether north or south of the conventional line between
the United States and Mexico established by that trea4;y; and
that the United States could no more lawfully interfere with
the enjoyment of that right than they could with the right of
vessels in course of the same trade to navigate the mouth and
current of the river; that the right to the navigation of the
Kio Grande included the right to the means without which
such navigation could not be reasonably enjoyed — among oth-
ers, the right to moor in the roadstead at its mouth ; that, even
if the United States couhl claim an exclusive right to occupy
the waters north of this line for the purpose of blockade,
a vessel honestly engaged in trade with Matamoras, and
anchoring for that purpose on the Texan side of the line, was
3952 INTERNATIONAL ARBITRATIONS.
entitled to notice or waruing before it coald be treated as
intruding on forbidden groand, and that a seizuie without
such notice was unjustifiable; that, in fact, the proofs failed to
establish that the vessel was lying norih of the dividing line,
and that the blockading vessels, by omitting to apprise lier
that she anchored in a place which tliey deemed an impro^wr
one, and by permitting her to be there and take on board lier
return cargo, were estopped to allege that her position was an
unlawful one.
"The claimant's counsel cited the Terecita^ 5 Wall. 180;
Madeiros r. Hill, 8 Bing. 231; bailor v. Taylor, 9 Barn. &
Ores. 718; Carrington v. Merchants' Insurance Company, 8
Peters, 517; Mr. Jefferson's paper on the navigation of the
Mississippi, 1 Am. State Papers, 254.
"On the part of the United States it was contended that the
Scieiwe and the other vessels of her class could not enter by
leason of their draught of water, and never attempted to enter
the mouth of the Rio (Irande or to reach the port of Mata-
moras; that, conceding her full right to navigate that river and
the waters through which its mouth was to be approached, and
even for that puri)ose to pass over the blockaded waters of the
Confederate States, it did not follow that she had the right,
for her own convenience and for the delivery of her cargo into
the lighters, to cast anchor within those blockaded waters, and
there lie for weeks in a position from which access, by means
of lighters to the blockaded coast, was easier, by night or by-
day, than that to the neutral i)ort for which her cargo x>rofessed
to be destined; that the United States were lawfully entitled
to blockade, and did bK)cka(le the seacoast of Texas, and that
such blockade would be wholly nugatory if a vessel in the
condition of the Science could claim and exercise the right to
cast anchor within the blockaded waters and within three
miles of the enemy's coast, from which it was evident that she
could, with great facility, hold communication with that coast.
"The commission awarded to the claimant the sum of $45,684,
Mr. Commissioner Frazer dissenting."
American and liritish Claims Commission, treaty of May 8, 1871, Ualti^s
Report 100-114. Seo also Howard's Kcport, 102, 107, 114, 118, 120.
Mr. Frazer delivered, m the cases of the Sir iVilliam
Mr. Prazer'a diasent- j.^^j^ ^^^ Volant, and tlu' Science, the foHowing dissent-
uur opinion. • .
^ *^ ing opinion:
** 1. The remarks made in the general argument for the claimants urging
that claims of this character Avere intended to be referred to this commis-
PRIZE CASES. 3953
Riouby Article XII. of the treaty, seem nnneceBsary, inasmuch as our juris-
diction of the cases is not questioned, and can not be.
^' If it is intended to infer that there must be an award of damages, from
the fact thut ther<) is jurUdiction, I can not a<lmit the inference. Jurisdic-
tion is merely the power to hear and decide, and necessarily involves the duty
of deciding favorably or adversely as the circumstances shall warrant.
*^2. In like manner the somewhat extended remarks of the general argu-
ment to establish that bona fide trade with the Mexican port of Matamoras
w:is not a violation of the blockade, and could not lawfully be reached by
the blockade, may be put out of the case. No such thing was ever, for a
moment, pretended by the United States. If, however, it is intended to
suggest the inference that damages must be awarded for these captures
because it was adjudged that these vessels were in fact engaged in that
bona fide trade, then I deny the inference. The reason is a good one for
discharging the vessel, but it has little to do with the question whether
damages should be givou. That dex>ends upon the inquiry, was there good
apparent <;au8e for making the capture.
*^ 3. In view of the instructions to the blockading fleets (satisfactory' to
Lord Russell), of the contemporaneous disavowals of Mr. Seward, and of
'the uniform decisions of the American prize courts, there is no warrant
for the assumption (p. 21) that ' these captures were intended to affect the
trade between Great Britain and Mexico.'
'^4. The doctrine that this commission may, by its decisions, disregard
the law of nations, in deference to whatever undefined notions of 'e([uity
and justice' the several members of the commission may happen to enter-
tain from time to time, is to me a very great surprise. It brings to mind
the remark of an eminent English law judge, resisting tlie establishment
of the jurisdiction of the courts of equity in that country, to the efiect
that decisions in equity depended upon the individual conscience of who-
soever happened to be chancellor, and were therefore as uncertain as the
length of the chancellor's arm or loot ! From such equity as that he might
well have wished the deliverance of his countrj^. The injustice of his re-
proach is, however, seen in the fact that * et^uity follows the law ' — abides
by it — not only obeys but maintains it, and administers justice according
to a system of known and established princix^les sanctioned by pre(;edent ;
that it does not depend upon the individual conscience of the judge.
*'\Vhat is the law of nations which it is insisted this commission may
disregard? All definitions of it are in accord, substantially, and none
of them better than B1ackstone*s, ^ that which regulates the conduct and
mutual intercourse of independent states with each other by reason and
natural justice." It is the natural law applied to nations in their relations
with each other, so far as they have consented that it shall be thus applied.
It is wanting in some of the essentials of strict law, however; it is not
prescribed by a common superior, and its only sanction is the puhlic
o[)iuion of Christendom. Nor is it a complete code having an established
rule for all <inestions that may arise. It is yet in the period of its growth ;
but whenever it does speak it utters the rule which the wisdom of the
nations has by common consent found to be most in consonance with
reason and natural justice. When it gives a rule for the government of a
given case, it furnishes the full measure of international obligation in
that case— is the only standard by which eondnct in that case can be
3954 INTERNATIONAL ARBITRATIONS.
properly tested. In other words, it ascertaius what is ' e<inity and justice'
between nations.
*'If seeking to pay a compliment to the eminent men who negotiated
the treaty, I think one wonld hardly choose to say, Hhey anthorizail the
mixed commission at will to substitute for the rules of right which have
been sanctioned by all Christian powers and the courts of both countries
the individual notions of the commissioners thereafter to he chosen.'
''The application sought of the proposition alluded to is, in salietonce,
that, though the facts before the prize court fully justitied its judgments,
according to the international law as even the British courts would them-
selves declare it to-day, yet this commission may, upon some imaginary
ground of equity, be bound ni^vertheless to award damages. I can only
say that no such result can occur here, except over the most emphatic and
decided dissent with which I can oppose it.
"The SHence (No. 391) wiis found at anchor in the roadstead outside the
mouth of the Rio Grande, within less than a marine league of the Texas
shore, which was blockaded. Her outward cargo, then discharged, had
consisted in part of Confederate gray cloth (290 bales). She was, in fact,
consigned to Matamoras, and really had discharged her cargo there. Mata-
moras was forty miles up the river. The Texas shore was accessible and
less than two and a half miles distant. Captured November 5, 1863; hud
been there since August 12.
"Tbe UoHhing Wave (No. 395) was found at anchor near the Science, but
further within American waters. No part of her cargo was war material.
There were, however, two boxes (£12,000) of gold coin, £7,000 of which
belonged to one Caldwell, whose nationality was unknown, but it is
evident he was not British. It appeared from papers on board that at
his request I^izardi Sl Co., British merchants, shipped it as theirs, the
bill of lading (p. 193) containing the unusual recital that it was ^all
British proj)erty.' She bad discharged no part of her cargo. Caldwell
had re(|uested this 8hi])mcnt to be made by Lizardi «&. Co., as their prop-
erty, in their name, with £5,(X)0 to be advanced by them to him, if their
consiirnee at Matamoras ajiprovcd of ])roposed investments of it. He had
specially requested that it be insured, 'including the war risk' (p. 200).
She was, in fact, bound for Matamoras.
"Caldwell made no claim, but a claim was made on behalf of Lizardi
& Co. for the whole £12,000, averring that 'no t>ther persons are interested
therriu,' and sworn to by their attorney. Also, in the same behalf and to
the same broad (extent, by Armando Brothers, to whom the consignee had
indorsed the bill of lading.
'*The Volant (No. 388) was cajjtured in American waters, the same as the
JScitnce and the DdHhimi ll'arc, loaded by the same brokers who loaded the
Scinnu; and had Confederate gray cloth (15 bales), being balance of invoice
sent by «S<*/rw('c. The remainder of her cargo was blankets, shoes and
woolen stockings, and bran<ly. She had not discharged her cargo. The
invoice on board dcscribi'd the cloth (p. 73) as four bales blue mixed, one
dark mijred, Um tfkij blue. It seems that the whole was mixed, no »ky blue
whatever. Thf manifest sliowrd boots, but no shoea.
"The .Sir JVilliavi Peel (No. 243) was captured at the mouth of the Rio
(irande, in Mexican waters. She bad been there about three months.
Her cargo, as per nnmifest, had been nlo^tly discharged at Matamoras^
PRIZE CASES. 3955
and sliu had taken 904 bales of cotton, part of her return cargo. She had
two 25-poand guns mounted, considerable ammunition, small arms, toma-
hawkSy cutlasses, etc., for boarding; engines six feet below water lino
Burden, 1,044 tons. Signal lights were on her at night.
"A Confederate oflBcer, it was sworn, claimed to have received arms from
her, landed on the coast of Texas at night; and this was not contradicted,
though there was opportunity. There is other strong inculpatory evidence,
which is, however, contradicted, tending to show both the inward and out-
ward cargoes to have been Confederate property.
^* The question in all these cases is, whether or not there was probable
cause for capture. The cargo of each of them was adapted to the Texan
market, and there is little doubt that it was expected ultimately to find
sale there, whether first to enter into the general stock of Matamoras, or
merely to observe the form of passing through that place in transit to
Texas.
''It seems from the evidence that the merchandise unladen at the mouth
of the Rio Grande for Matamoras was conveyed to the latter place either
in small steamers by the river, or in wagons by land. It seems also that
this land transportation by wagons was likewise practicable on the Texas
side from the coast at the mouth of the river.
'' It was a matter of notoriety that enormous supplies of military as well
as other goods for consumption in the Confederacy had been introduced
through Texas direct ^ until the blockade of that coast was made effective,
and afterwards through Matamoras. It was e([ually notorious that there
was in Texas a great demand for such goods when these vessels were
seized; and that it was the policy of the rebel authorities to ship cotton
abroad rather than sell it at home. ,
'' These considerations are mentioned to show the strong temptations
which existed to introduce goods, and especially arms and ammunition
(which could not go through Matamoras) into Texas direct. And if
accomplished, it would avoid Mexican custom-house scrutiny, duties,
charges, and detentions, and all the inconveniences which flow from cir-
cuitous and indirect methods.
'' Inasmuch as watchful Federal cruisers were present almost constantly,
any attempt by day to put goods upon the Texas shore would have been
too hazardous for probable success. If done at all, it must have been under
cover of darkness and in small quantities at a time and by the use of
small boats. This would consume time, and would be greatly facilitated
by nearness of the ship to the Texas shore.
''The Science. The foregoing observations apply in all these cases.
With a burden of only 300 tons, the length of her visit (nearly three
nionths) was of itself remarkable. She had the strong temptation to
violate the blockade, and she had placed herself so near the Texas shore
that she had the opportunity to do it. These circumstances of suspicion
she created and did not explain. If a ship may thus put herself so near
a blockaded shore for months, where, under cover of the night, she can
laud her cargo upon it, and this without any peril or cause of suspicion,
then, indeed, the right of blockade is less valuable to a belligerent than
I believe it to be.
" I am thus led to the conclusion not merely that the judgment of the
5627^VOL. 4 46
3956 INTERNATIONAL ARBITRATIONS.
Supreme Court iu the case of the Science was not clearly wrong, but that
that judgment was clearly right.
*'Tho Dashing Ware. The foregoing remarks apply with equal force to
the case of the Danhintf Wave, exce])t that she had but re<;ently arrived
at the place where she was seized ; and in this case there is superadded
the facts concerning the coin of Caldwell. A Mexican would have uo oc-
casion thns to conceal his ownership. A Mexican would not have feared
to make claim in the prize court. He was either Mexican or Confederate,
for his country hail political troubles. The concliision is difficult to avoid
that he was an enemy and his property liable to capture, contaminating
all that belonged really to Lizard! «fe Co.
*' I perceive uo error in the judgment of the Supreme Court iu this ease,
except in its failure to condemn the coin as lawful prize.
*'The J'olant is a case much like the Dashintj Wave, There was no simu-
lated ownership of cargo, but there was an apparent effort to mislead by
the invoice aH to the cloth — to conceal the fact that it was Confederate
gray.
" I see no suHicient reason to hold in this that the judgment of the Su-
preme Court was wrong.
"The Siv William Peel differs from the other cases in the fact that she
was captured in Mexican waters, wliere she had a right to 1>e; though it
seems from the evidence that she had i)reviously been in Texan waters.
Iu all otlier respects th(^ case is stronger against the ship than in either of
the others. It is only by giving her tlie benetit of doubts that I can say
nhit should not have been condemned. I am very clearly of opinion that
there was abundant reason fur seizing her and sending her in for adjudi-
cation.
''That she was taken in Mexican waters was a violation of the sover-
eignty of Mexico, but not of the rights of tlie ship and <*argo, which could
not l>e interposeil for their protection except by Mexico, was the doctrine
held by the Supreme Court. 1 think the proposition is fully supported by
reason and tlie ]>rinciplcs of Justice, and that it is a sound principle of
international law, best in accord with the adjudged cases."
On t\ut (jiiestioii of tiie assessment of <lamages in the case of the Sir
lyUliam reel, Mr. Frazer delivered the following dissenting opinion:
"Concerning the {issessnieut of damages in the case of the Sir William
Vecl (the Judgment of the Supreme ('ourt of the United States being
deemed erroneous by my colleagues), I felt constrained to dissent upon an
important point.
'* The ship and nearly all the cargo having been restored, it was material
to ascertain the value of the property so restored at the. date of restitution.
If it was then worth as much as when captnred, the only legitimate dam-
ages, it seemed to me, would be its use during the period of detention,
together with costs and expenses. The value, I tliou«iht, should be taken
at the time and j)lace of restitution, and not at a different time. It had
been ascertained at that time hy an appraisement by the prize court, one
of the appraisers being an agent of the claimants. This appraisement
was in round numbers, in goM, .C<»7,r>(H). Hut the claimants chose, ut
very great expense, to take the ])r()p<*rty to I'^ngland, where they sold it,
realizing only £3J»,6(H); from which lias been deducted all expenses of
PRIZE CASES. 3957
removal to England, insurance, and otLer expenses of its preservation and
care after restitution (a very considerable aggregate) and these net pro-
cef'.da, deducted from the value at the time of capture, have been taken as a
l»art of the damages awarded. I could not resist the conclusion that the
claimantH had, after restitution, sacrificed the property for but little more
than half its value; and I could not agree that the United States should
stiHer that loss. It constitutes about three- fourths of the large sum
awarded in the ctise/'
In the case of the Dutch brig (iesiena Heligonda, Walter Easton, trustee,
claimant, No. 390, the claim was disallowed apparently on the ground
that, although the vessel was ostensibly on a voyage from Liverpool to
Msitamoras and back, she was, when captured, seeking to enter the block-
aded port of Brazos Santiago, in Texas (Hale's Keport, 127; Uoward's
Report, 123).
7. SAL.E OF Belligerent Ship in Neutral Port.
Cav,ofthe'*Oeoigia." ''^^^ Steamship Georgia, Edward Bates,
^ M. P., claimant, No. 429.
'* The memorial of the claimant in this case recited that the
Georgia was an armed vessel of the Confederate States; that
she came into the port of Liverpool on or aboat the 2d May
1864; was there disarmed and advertised for sale; and that
tlie claimant;, on the 2d Jane 1864 purchased her without any
armament, acid paid for her in |>:ood faith the sam of £15,000
sterling, ber full value at the time of the purchase; that he
immediately changed her internal arrangements to lit her for
use as a merchant steamer, and on the 18th July 1864 char-
tered her to the Portuguese Government for a voyage to Lis-
bon, Portugal, having spc^t a large sum of money in the
alterations and fittings to adapt her for carrying passengers
and cargo pursuant to the terms of the charter party; that
under the charter party the vessel was laden by the Portu-
guese Government with coals for the use of the vessel, and
duly cleared at Liverpool on her voyage to Lisbon; that while
pursuing that voyage, ' in a peaceable manner and in violation
of no law whatsoever,' she was unlawfully captured on the
high seas by the XJniteil States ship of war Niagara; was
taken into the port of Boston, there libelled in the United
States district court, and condemned as lawful prize; that an
appeal was taken from the decree of the district court to the
Supreme Court of the United States, which on the hearing
atlirmed the decree of condemnation. The claimant claimed
an award for X27,654, besides interest.
^^ To this memorial the United States demurred as setting
3958 INTERNATIONAL ARBITRATIONS.
forth no valid claim against the United States; .n that the
memorial showed the vessel to have been an armed vessel of
war of the so called Confederate States of America, which
were, dnring the whole period of tbe transactions set forth in
the memorial, at war with the United States; that she entered
the neutral port of Liverpool in her character as sach armed
vessel of war, and was there purchased by the claimant, her
armament having been first removed, with full knowledge of
her former character as such vessel of war, belonging to a
power at war with the United States; that such purchase car-
ried no title to the claimant as aj^ainst the United States or
as against their right to capture the vessel its a vessel of war;
and that her subsequent capture by the United States, as set
forth in the memorial, was a lawful and valid capture, and the
vessel was properly and lawfully condemned by the prize
courts.
"The counsel for tlie United States submitted the case on
demurrer on the opinion of the Supreme Court, delivered on
tlie alhrmance of the decree of condemnation (7 Wall. 32) and
without further argument.
'' Her Britannic Majesty's counsel filed an argument in be-
half of the claimant, in which he contended that the doctrine
held by the Supreme Court as establishing liability of the
vessel to capture after her disiirinament and sale was nusound
and uiisustained by the authorities cited in the opinion. lie
cited and discussed the authorities cited by the Supreme Court
in its opinion, to wit: The Mhterra^i] Kob. 397; the BaltiCj
11 Moore's V. C. R. 145: Story's Notes on the Principles and
Practice of Prize Courts, (13; Wildman, vol. 2, p. 90; and con-
tended that these authorities did not sustain the conclusions
of the Supreme Court on which the decree of affirmance was
based.
"The claim was unanimously disallowed.''
AnuTicjiii and Hritisli Claiiufl Coiiimissioii, tn^aty of May 8, 1871, Arti-
cle XII. Hale's Keport, I'M). 8ee also llowanl's K<*port, 153.
S. MiSCELLANKOUS CASES.
''This claim is for the value of a vessel
Case of the "Consti n i ^i /^ w *• i i x i
„ called the Coutititufton and her cargo, taken
near the castle of San Juan de Ulloa in 1824
by the Mexican vessel of war Igualen^ and sent into Alva-
rado. She was condemned with her cargo by a prize court-,
and on appeal tbe sentence was affirmed. ♦ • * The prize
PRIZE CASfiS. 3959
court condemned tbe vessel because she was sailing without
a paper showing her character, and thus, they say, she was
violating the cruising ordinance of Mexico. How far a state
may regulate commerce within her own waters it is unneces-
sary to inquire in this case, since the vessel was captured on
the high seas; and the right of capture in such cases is, in the
absence of treaty stipulations, dependent on the law of na-
tions. It is not directly settled by the public law what shall
be the form of certificate to protect the vessels of neutral na-
tions sailing on the high seas in time of war. A bill of sale
containing a description of the vessel, with proof of citizen-
ship in the owner, may be suflBcient. Yet most if not all the
nations of Europe require that vessels shall be provided with
registers, passports, sea letters, or some certificate emanating
from the state, or by its authority, proving the character of the
vessel. The Constitution, a foreign-built vessel (her former
name being changed by the purchaser), was purchased by
Cheti, a citizen of the United States, and by the laws of the
IInite<l States was not entitled to any certificate from the pub-
lic establishing her ownership or character. The bill of sale
under which the owner claimed to navigate his vessel did not
contain a description of the vessel except in the name, and,
though attested, as was also the citizenship of the owner, by
a notary public, would seem to justify the detention of the ves-
sel by the captors. We think the case before the prize court
admitted further proof for the claimant. In cases analogous,
where the question of prize if determined on the vessel's papers
would have justified her condemnation, the courts have per-
mitted the claimants to make further proof; as in the case of a
vessel's sailing from necessitj' without a register, or its acci-
dental loss, and also where the vessel was visited and some of
her papers necessary for her defense were taken away. But in
such cases the courts have ordered the vessels to be restored
on payment of the captors' expenses. We think, under the
circumstances, that the vessel should not have been condemned
upon the ground set forth in the judgment of the prize court
at Alvarado, and the claimant was therefore entitled to resti-
tution of the projxerty.
'^The board decides that the claim for the value of the vessel
at Alvarado is a valid claim against Mexico, and the same is
accordingly allowed."
Ciiso of Zachariey assignee oj Chetif opinion of the commissioners,
Messrs. Kvans, Smith, and Pnine, nnder tbe act of Con^^ress of March 3,
184J».
3960 INTERNATIONAL ARBITRATIONS.
A Mexican vessel named the Oriente, osten-
Caseof the<'Oriente." sibly bound from one Mexican port to another
with a car^o of salt, pat into New Orleanai
which was then blockaded by the naval forces of the United
States, under alleged stress of weather. She was seized on
suspicion of having intended to run the blockade, and, on the
strength of certain alleged irregularities in her papers, her
crew were taken off and she was sent to New York to be
libeled for condemnation. The district attorney at New York
examined the case and, finding insufficient cause for deten-
tion, advised the Treasury that the vessel be released. This
advice the Treasury di<l not accept, but kept her in custody
for several months longer, when she was discharged without
trial. The commission, while admitting that the original
detention was justifiable, in order that the suspicions might
be investigated, held that the refusal to discharge the vessel,
after the suspicions had been shown to be unfounded, was
wrongful, and allowed damages for it.
Eduardo Berron v. Thv United States ^ No. 358, convention of Jnly^4, 1868,
MS. ()i». 1.47.
'^ The bark Empress. John Loft, mortgacfee.
Case of the "Em- , . . ^ ,.q-^ ' , e» & >
claimant, No. 387.
preM.
*^ This vessel was captured off the mouth of
the Mississip[)i liiver in November 1861, sent into the port of
New York and there libelled for iul judication as prize in the
district court. The district court adjudged condemnation of
vessel and cargo. (Blatchford's l*rize Cases, 175.) An appeal
was taken to the circuit court of the United States for the
same district, under the practice then existing, which court
reversed the judgment of the district court and awarded resti-
tution {id. 059), but without costs or damages to the claimants.
Pending the ])roceedings iu the prize court the vessel was sold
and the i)roceeds, less the costs taxed against the same, were
paid into the hands of the proctors of the claimants in the
prize court, Pearson and others, the owners of the vessel.
" The memorial alleged that this money was attached in the
hands of the proctors by creditors of Pearson, and that Pear-
son's interest in the same was appropriated to the payment of
the debts due from him to the attaching creditors. The claim-
ant, Loft, alleged hiinself the holder of a mortgage given by the
owner, l^earson, to him to secure the sum of £1,000 and interest,
PRIZE CASES. 39fil
which mortgagee was wholly due and nnpaid. It alleged that
the claimant had never received any notice of the capture of
the bark, except as he learned the fact from the owners some
time after the capture, and that he was then informed by the
owners that they were taking the necessary and proper steps
in the law courts for the purpose of protecting their interests.
<< The memorial also alleged that the bark, at the time of
her capture, was worth the sum of £4,000, and that it became
largely depreciated in value by being suffered to remain with-
out repairs, and without i)roper care being taken of it during
the time it was detained ])rior to the sale. The claimant
claimed the amount of his mortgage, £1,000 and interest.
" His counsel contende<l that the decree of the circuit court
having ordered the restitution of the ve^ssel to the claimants
free of all costs and charges, it was plain that that decree had
not been executed, over S2,000 having been retained from the
proceeds as costs and charges, and the proofs failing to show
that the remainder of the proceeds even were ever paid over
in any manner under the decree of the court.
"On the part of the United States, it was contended that
from the memorial itself it api)eared that the proceeds of the
vessel were regularly paid over to the proctors of the owners,
the only claimants appearing in the prize court, excepting only
costs allowed by the court as claimants' costs out of the fund.
That it further appeared from the memorial that these funds
thus paid over to the proctors were appropriated by regular
judicial process to the payment of claims of attaching creditors
of the owners. That if the claimant. Loft, as mortgagee, had
a valid lien upon the vessel that lien could have been followed
against the proceeds due, had he seen fit to take the necessary
steps for that purpose; and that he having failed to do so, his
lien had been lost by his own negligence. That, as to the sum
withheld for costs, nothing appeared to show that that sum was
excessive in amount, or was improperly withheld; and that if
such had been the case, the remedy of the claimant or of his
mortgagor, who represented his interests before the prize
court, was ample befoie the courts themselves. That the
whole case showed no ground of international reclamation on
behalf of this claimant.
^* The commission unanimouslv disallowed the claim."
Am<'ri<;in ami Hritish ('laiiiis CoinmiHAion, treaty of May 8, 1871, Article
XII. lIalo*H Keport, 125. i^ee :i1ho lIoward'B Report, 149.
3962 INTERNATIONAL ARBITRATIONS.
The William L. Riclvardson^ a registered
Case of the "Wil- Americau schooner, the property of Cory Wil
"^, lastuii and George Goodrum, citizens of the
United States, on October 11, 1864, cleared from
San Francisco, under the command of Goodrum, for La Paz,
Territory of Arizona, on the Colorado River. On l>oard of the
schooner there were 100 kegs of powder belonging to the Ari-
zona Mining Company, a New York corporation, then engaged
in mining in Arizona, the powder, as was alleged, being
intended for use in that business. When the schooner was iu
the Gulf of California, near the iKjrt of La Paz, in Mexico, she
was brought to by shots from the French war steamer Diamantj
and was boarded. The officer in command of the boarding
party demanded the schooner's papers, which were delivered
up under jirotest, and the schooner herself was towed to a point
about eight miles from La Paz, where tlie hatches were opened
and the powder taken i)ossession of by authority of the com-
mander of the Diamant,
On these facts damages were claimed, on behalf of Willustun
and Goodrum, for the freight on the powder, for the detention
of the schooner for ten days, and for the breaking up of their
freighting line on the Colorado River, amounting in all to
$10,000; and, on behalf of the Arizona Muiing Company, for
the taking of the jmwder and for the injury to the company's
business resulting from its loss.
At the time when the schooner and cargo were seized, the
coast of the Gulf of California was guarded by French cruis-
ers, but no formal blockade of the Mexican ports in that quar-
ter had been declared. It appeared, however, that an order
had been given by the French authorities to the French consul
at San Francisco not to certify any invoice of powder to any
l>ort in Mexico; and the seizure of the vessel and the appro-
priation of the i)owder were justified by counsel for the French
Republic on the ground that the presence of the William X.
Eichar(ho7i so near the western shores of the Gulf of Cali-
fornia, and near the port of La Paz, iu Mexico, warranted the
conclusion that the powder was destined for a Mexican port.
The bill of lading and the testimony showed that the powder
was blasting powder.
It was claimed by counsel for France that
Arsnuiieiit of coiixiBel
for France powder had been condemned by a French
tribunal as prize of war. Xo record of the
emnation was produced, but a certificate wjis furnished,
PBIZE CASES. 3963
maile by the minister of the navy and of the colonies, that
100 kegs of powder were captured on board the ship Richard-
son by the French avinOj the Diamante of the naval division of
the Pacific; that the seizure of the powder, regarded as con-
traband of war, had been held to be valid by tlie council of
prizes; that its value, amounting to 1,303 francs and .70
centimes, had been the subject consequently of distributiou
among the captors, and that the production of a copy of sai<l
Judgement was not possible, the archives of the council of
prizes having been burned in 1871. Upon this certificate it
was contended by counsel for the French Government that,
as to the powder, the claim was barred by the second article
of the convention, as interpreted by the diplomatic represent-
atives of the two governments; that the decision of the case
by the imperial council of prizes was final; that its decision
that the powder was (contraband of war affected the vessel;
that the claims of Goodrum and Willustun should be rejected
for the reason that the ship was engaged in transpot ting goods
contraband of war, and consequently that no claim for deten-
tion for the purpose of searching the vessel and taking there-
from such goods could be maintained.
Counsel for the United States in reply,
Beply of counsel for ^^^^ .
the United States.
" By the treaty of 1853 between Mexico and the United
States the Unite<l States was entitled to the free navigation of the Gulf of
California for the purpose of availing itself of the river Colorado, which is
wholly within oar jurisdiction. The Jiichardson sailed from San Francisco,
as it appears from the record, without knowledge that a Idockiide had been
declared. She was sailing at the time of the arrest in waters to which we
had free access by the treaty, and that right of access was not disturbed by
the circumstance that France had engaged in war with Mexico. Those
waters remained free to us for all our purposes. If war existed, and a block-
ade had been declared, theiTi of course, we had no right to run the blockade.
If this vessel had been engaged in running the blockade, she was subject
to seizure. But the mere fact that she was using the waters of the United
States — this vessel being a vessel of the United States — gave her an abso-
lute right to bo where she was. She wjis precisely in the situation in
which a vessel clearing from Halifax, in Nova Scotia, and bound to the
Bermuda Islands, which were British possessions, would have been during
our war with reference to the blockade on our coast. It would not have
be'Mi competent for one of our blockading vessels to have seized a British
shij) when thus on her way by the ordinary course, or out of her way by
stress of storm. The seizing vessel must know, before laying hands on
a neutral ship, or even ordering her to heave to, that she was out of her
proper course by her own motion, and that the diversion from the proper
3964 INTERNATIONAL ARBITRATIONS.
coarse must have been of such a nature as to show that she was intendinfi:
to ran the blockade. Otherwise the assaalting party is cnlpable, and
otherwise there would be uo freedom of tlie sea. The RielMrtUom was mov-
ing toward the mouth of Colorado River by the direct line, as may be
seen by the map. She was hugging the coast, to be sure — the western coaiit
of the Gulf of Califoruia ; but that was the line of direct movement toward
the mouth of the Colorado River. The idea that she should have taken the
middle of the Gulf, or the eastern shore, is absurd, as the western coast
was the nearer way, and she had a right to use it. I say farther that even
if there was (evidence that sho intended to land at La Paz, in Mexico, the
most that could have been done by a blockading vessel was to intercept
her and give her notice that she could not enter a port of Mexico. That
is what the JHamant was bound to do. She had no right to board the
Jilchardson. The JHchardaon was equipped with clean papers, and boiiu<l
from San Francisco to a port on the Colorado River. She was in waters
whicli by treaty we had a right to use. Therefore the French veasel bad
no riglit, oven if the master had absolute knowledge that the Richardson
intended to enter La Paz, in Mexico, to do anything more than to notifj-
her of th<^ blockade. Therefore the French vejsel was in fanlt altogether.
That fact established carries Avitli it the whole of this case. * • •
" We were upon a water on which we had a right to sail our ships, and
upon two grounds — first, that it was an open sea; secondly, if it was not
an open sea. it was water within the jnrisdiction of Mexico, and if it was
within the jurisdiction of Mexico, then we had a right to sail upon it by
virtue of the treaty of 1853. Therefore we liad a riglit to be upon that
water at that ])articular time, unmolested by any govemuient on the face
of the earth. If Mexico and France were at war, the only limitation upon
that right Avould be the right of Fran<'e to enforce against ns the rules of
war in reference to blockade. All that the JHamant had a right to do was
to warn us oft' if she thought we were bound to a port of Mexico with ar-
ticles contraband of Avar, or to aid the belligerent.''
By the action of a majority of the comuiission, Baron de
Ariiios and M. Lefaivre, the cases were dismissed for want of
jurisdiction. Commissioner Aldis dissented from the decision
of the majority, and reserved tlie riglit to tile an opinion. That
right, however, in tlie end was not exej;cised by him. It waR
understood that tlie majority of the commission accepted the
certificate of the minister of the navy and of the colonies as
satisfactory proof that the case had been judicially dispoaeil
of, conformably to the diplomatic agreement between the two
governments.
The Jri:ona Mhiinff Co. v. The livpnhlic of FrancCy No. 13; George Goodrum
v. The Hepublir of France, No. 16; /f. W. WilluHtun and U\J. Dutioity Execu-
tors of the Fstatc of Gory }ViUH8tnny v. The Hrpnhfio of France, No. 17; Kont-
wclTrt Rc]iort. 11)7* (W>unnissir»n under the convention between the United
StateM and Franctj of .lanuary 15, IHHO.
PRIZE CASES, 3965
The memorialists stated that in the year
CaM of the "Ana- -^^q^^ while they were in partnership and resid-
ing temporarily at the city of Acapulco, in
Mexico, they became the owners by purchase of a steamship
called the Anahuac and of a schooner called the Teresa, both
of which were employed by them in the transaction of their
bnsiness as merchants. The evidence disclosed the fact that,
although the purchase money was paid by memorialists, the
conveyance was made to a Mexican named Barrera, The
reason given by Barrera for this arrangement was that Mas-
son and Tripler, being American citizens, could not own a
vessel and carry on the coasting trade under the flag of Mexico.
In February 1864 the vessels lelt Acajmlco for Puerto Angel,
in Mexico, where the cargo was delivered and a return cargo
taken on board. Upon their return from Puerto Angel the
Anahuac was boarded by an officer from the French man-of-
war Le lihin. Shortly afterward two launches from a French
frigate called the Fallus were sent, and the men and officers
from the launches took possession of the two vessels. The
vessels making the seizure were a i)art of the blockading
squadron which was then engaged in support of what was
called the '^ imperial party" in Mexico, under the lead of Maxi-
milian, in opposition to what was known as the " republican
government," or "liberal government," in that country. The
Anahuac was used as a dispatch boat for a time, and there
were proceedings by which the vessel and cargo were declared
to be prize of war by a local prize court, but when the case
was brought before the imperial council of prizes it was de-
creed that the vessel should be restored, in conformity with a
decree of March 29, 1805, by which it was provided that res-
toration should be made in all cases where vessels and cargoes
had not been "definitively condemned." The proceeds of the
cargo when sold wen* deposited to the credit of whomsoever it
might concern in the cnisse dcs inralidcs dc la marine at Paris,
It appeared that the vessel was never restored, the reason
given being that it was not practicable to find the owners.
The majorit}' of the commission, Baron de Arinos and M.
Lelaivre, made an aw^ard in each case, in the terms following:
" Washington, ^fareh ^>^, 1SS4.
"The cargo of the Anahuac was sold by the French authori-
ties, and the proceeds of the sale, amounting to 0,820 francs
and r>7 centimes, were de[>osited with the ' caisse des invalides
I
3966 INTERNATIONAL ARBITRATIONS.
de la marine' of France. The court of prizes of France decreed
restoration of said cargo, or of its proceeds, to its owner.
" We award that the French Government shall pay a sum
equal to one-half of said proceeds deposited with the ^ caisse
des invalides de la marine' of France, amounting to three
thousand and four hundred and fourteen francs and 7S^ cen-
times to the claimant, as owner of one half of the cargo of the
Anahuacj with interest at the rate of 5 per cent i)er annum
from April Ist, A. D. 1864; and when said award shall have
been paid by the Government of the French liepublic to the
Government of the United States of America, the French
Government shall be subrogated to tlie rights of the claimant
to the said one-half of the sum of six thousand eight hundred
and twenty-nine francs and 57 centimes, dei>osited as afore-
said, with accruing interest.
" The rest of the claim is disallowed."
Commissioner Aldis added the following:
" While I assent to the above allowance, I must respectfully
express the opinion that the further sum of $4,888 ought to be
allowed for the Mexican dollars, which I think were taken by
the French military authorities."
JVilliam C. Tripler v. The French liepuhliCf No. 4, an<l Thonuu Masson v.
The French J*epubHc, No. 15, Boutwell's Kcport, 195: CoininiHBion under the
conviMitiou botweon thu Uuitod StatcH and Franco of .Tannary 15, 18S0.
CHAPTER LXVIL
NEUTRALITY.
1. Cases under Abticlij VII. of the Jay Tbeaty.
Article YII. of the treaty between the
Pn)vi«i0ns of the United States and Great Britain of November
19, 1794, commonly called the Jay Treaty,
recites that "whereas certain merchants and others, His
Majesty's subjects, complain that in the course of the war"
then pending between Great Britain and France, "they have
sustained loss and damage by reason of the capture of their ves-
sels and merchandise, taken within the limits and jurisdiction
of the [United] States and brought into the ports of the same,
or taken by vessels originally armed in ports of the said States:
It is agreed that in all such cases where restitution shall not
have been made agreeably to the tenor of the letter from Mr.
Jefferson to Mr. Hammond, dated at Philadelphia, September
5, 1793, a copy of which is annexed to this treaty, the com-
plaints of the parties shall be and hereby are referred to the
commissioners to be appointed by virtue of this article, who
are hereby authorized and required to proceed in the like
manner relative to these as to the other cases committed to
them, and the United States undertakes to pay to the com-
plainants or claimants in specie, without deduction, the amount
of such sums as shall be awarded to them respectively by the
said commissioners, and at the times and places which in such
awards shall be specified, and on condition of such releases or
assignments to be given by the claimants as in the said awards
may be directed; and it is further agreed that not only the
now existing cases, * * * but also all such as shall exist at
the time of exchanging the ratifications of this treaty shall be
considered as being within the provisions, intent, and meaning
of this article."
The origin of these stipulations has been traced in the history
of the commission under the article in question.' The cases
' Supra, I. Chapter X.
3%?
3968 INTERNATIONAL ARBITUATIONS.
that came before the coininissioii will now be examined, with
a view to ascertain the i)riucii)le8 on which they were deter-
mined. In this relation it is necessary to refer to certain
preliminary fa<5t8.
When M. Genet, the French minister, ar-
aseo 6 rived at Charleston in April 1793 he sent the
frigate Emhuscade^ in which he had come to
the United States, on to Philadelphia, intending himself to
make the Journey by land. On* the way to i hiladelphia the
Einhusvade fell in with and captured the British ship Grange^
in the Delaware Bay, On the advice of the Attorney-General
of the United States that the Delaware Bay was within the
jurisdiction and protection of the government, a request was
made to Genet to cause the Grunge and her cargo to be re-
stored. With this request he complied.'
This a(;t was an exception to his general
i.ingou 0 - course of conduct. Having brought with him
a large number of blank commissions, he
busily employed himself after his arrival in the United States
in the fitting out and arming of vessels as privateers. Among
the earliest of this class were Le Citoijen Genet j Le Sans
CiilottcSy and Le Vahiqueur <le la lUmtUle^ from Charleston;
VAnti- George^ which was soon lost, from Savannah; Le Car-
magnoJe and Le relit Democrat^ from tin; Delaware River; Xe
Repuhlivain^ which was soon captured; and Le Rolandj from
Boston. These vessels took numerous prizes, which Genet
refused to cause to be restored, thout»h some of them were
seized within the waters of the United States.
At this time the United States had neither
Washington's proc- ytatut^s nor i)refedents on the subject of neu-
lr^*t^°'' °^ ''*'" trality, nor had the duties of neutrals ever
been clearly defined. The first step in the de-
velopnuaitof the government's neutral policy was the issuance
by Washington, April 22, 1793, of the following proclamation:
** HV THE I'KK.SIDKNT OK TIIK InITED STATES.
"A PKOCLAMATIOX.
** WboroaH it aiipears that a sUxiv of war exists lietweeu Austria, Prussia,
Sardinia, Great nritain, and tlio United Netherlands, of the one part, and
France on the other, antl the. duty an<l interest of the United States
•Am. State Papers, For. Kel. I, 118, 150.
NEUTRALITY. 3969
re<|uirc that they should with siucerity uud good faith adopt aud pursue
a conduct friendly aud impartial toward the belligerent powers:
''I have, therefore, thought fit by these presents to declare the disposi-
tion of the IJniUul States to observe the coqduct aforesaid towards those
powers respectively; and to exhort and warn the citizens of the United
States carefully to avoid all acts and proceedings whatsoever which may
in any manner tend to contravene such disposition :
"Aud I do hereby also make known that whosoever of the citizens of
the ITnited States shall render himself liable to pimishment or forfeiture
under the law of nations, by committing, aiding, or abetting hostilities
against any of the said powers, or by carrying to any of them those arti-
cles which are deemed contraband by the modern usage of nations, will
not receive the ]»rotection of the United States against such puuishment
or forfeiture; and, further, that I have given instructions to those officers
to whom it belongs, to cause prosecutions to be iustitutod against all per-
sons who shall, within the cognizance of the courts of the United States,
A'iolate the law of natiouH, with rospecrt to the powers at war, or any of
them.
" In ti^stimouy whereof I have caused the seal of the United States of
Auie:ica to be affixed to these presents, and signed the same day with my
hand.
"Done at the city of l*hilade1phia, the 22d day of April 1793 aud of the
Independence of the United States of America the 17th.
"Go. Washington,
*Miy the President:
" Til. Jkkferson." '
The foiegoiug proclamation was com munica ted by Mr. Jef-
fersoii, as Secretary of State, to the ministers of the belligerent
powers with the following letter or note:
" rillLADKLlMlIA, A^l :^3j 170S,
'* Sik: As far as the public gazettivs are to be credited, we may presume
thit w^r ha^ taken place among Bevenil of the nations of Europe, in
which France, England, Holland, and Prussia are particularly en<>:aged.
Disposed ourselves to pursue steadily the Avays of peace, and to remain in
friendship with all nations, the President of the United States hns thought
it expe4lient, by the proclamation, of whitdi I enclose you a copy, to notify
this disposition to onr citizens, in order to intimate to them the line of con-
duct for which they are to prepare; and this ho has done without w:iiting
for a formal notification from the belligerent powers. He hopes that those
powers, and your nation in particular, will consider this early i)recau-
tion as a proof, the more candid as it has been unasked, of the sincere
and imi)artial intentions' of our country, and that what is meant merely
as a jL^eneral intimation to our citizens shall not be construed to their prej-
u<li(M' in any courts of admiralty, as if it were conclusive evidence of
tln'ir knowle^lg(^of the existence of war, and of the powers engaged in it.
Of tills we couhl not give them conclusive information because we have it
»See Am. State Papers, For. Kel. 1. 140; Inited StaUs \. lien field ^ Whar-
ton's State Trials, 41).
i
3970 INTERNATIONAL ARBITRATIONS.
not oaro<jiv(\s; and till it is given to ns in form, and so commanicated to
thcni, wo mnst consider all their acts as lawful which would have been
lawful in a state of peace.
"I have, etc., Th. Jkffbrsox."
May 8, 1793, Mr. Hammoud, the British miii-
CompUintoofjWda. ^ informed Mr. Jeflerson that two British
tionsof Neutrahty. '
brigantines, the Four Brothers and the Morn-
ing Star, had been brought by the French frigate Embiiscade
into Charleston, where they had been condemned as prize
by the P^rench consul, who was assuming to exercise the
powers of a court of admiralty. He also called attention
to the fact that a considerable quantity of arms and military
iiccoutrements, purchased by an agent of the French Govern-
ment, was about to be exported from New York.
On the 15th of May Mr. Jetferson replied that the judicial
sict performed by the French consul at Charleston was not
warranted by the usages of nations nor by treaty, and conse-
quently was a mere nullity, and that it involved a disresiiect
to the United States to which the government could not be
inattentive. As to the shipping of arms and munitions of war,
he said that the citizens of the United States were *'free to
make, vend, and export arms,'' subject to the penalty of con-
fiscation if such arms should be seized by any of the belliger-
ents on the high seas.
The Emhuscade was neither fitted out nor
Dedfflon of the United .^nned in the United Statt^s, and her captures,
^^ . i!./iV unless made within the jurisdiction of the
Court at Fhiladel- *
jjij^^ United States, did not in themselves involve
the government in any responsibility. Nu-
merous captures were, however, made by the privateers that
were fitted out and armed in the United States. On tlie
5th of June 1793 Mr. Jefierson informed Mr. Genet of the
decision of the President that the fitting out of such pri-
vateers involved a violation of the rights and duties of the
United States as a neutral, and askcMl that they be required
to depart from the ports of the United States. Prior to
this time IjV (Jitoyen (tenet had seized tlie ship William, of
Glasgow, and the brigantine Actii'<e, of Bermuda; and at
least four vessels liad been taken by Le Sans Culottes,
amcmg which was the brigantine Fanny, of London. Both
the William and the Fanny were brought into the port of
Phihidelphia, and the interposition of the courts was invoked
NEUTRALITY. 3971
to secure tlieir restitntiou. Judge Peters, of the district court
ot the United States at Philadelphia, decided in June 1793
that he had no jurisdiction in the matter, even though the
capture was made within the territorial limits of the United
States.^
The court having declared itself incompe-
Hanulton's inrtruc- iq^^^ ^^ intervene, the President decided to
tioM to Co ectors ^^^ ^^^ himself. The diplomatic correspondence
of CoBtoms.
on the subject is reviewed in another place.^
August 4, 1793, Alexander Hamilton, as Secretary of the
Treasury, issued to collectors of customs the following in-
structions : ^
Instructiana to the collectors of the cuatoma,
"(Circular.]
" Philadelphia, August 4 ^ 1793,
*' Sir : It a])peariug tbut repeated contraventioiis of onr neutrality have
taken place in the ports of the United Statues without having been discov-
ered in tinio for jirevention or remedy; I have it in command from the
President to address to the collectors of the respective districts a particu-
lar instruction on the subject.
"It is expected that the officers of the customs in each district wiU, in
the course of their official functions, have a vigilant eye upon whatever
may be passing within the ports, harbors, creeks, inlets, and waters of
such district, of a nature to contravene the biws of neutrality, and upon
discovery of anything of the kind will give immediate notice to the gov-
ernor of the State and to the attorney of the judicial district compre-
hending the district of the customs within which any such contravention
may happen.
*' To assist the judgment of the officers on this head I transmit herewith
a schedule of rules concerning sundry particulars which have been adopted
by the President as deductions from the laws of neutrality established
and received among nations. Whatever shall bo contrary to these rules
will, of course, be notified as above mentioned.
''There are some points which, pursuant to our treaties and the deter-
mination ot the Executive, 1 ought to notice to you.
'' If any vessel of either of the powers at war with France should bring
or send within your district a prize made of the subjects, peo])le, or prop-
erty ot" France, it is immediately to be notilied to the governor of the
State in order that measures may be taken, pursuant to the seventeenth
article of our treaty with Franct?, to oblige such vessel and her prize, or
such ])ri/e when sent in without the capturing vessel, to depart.
^Fhidlay v. The Ship inUiaw, 1 Peters' Adm. 12; Moxon v. The Fanny, 2 Id.
,SOi). Accompanying the report in the former case there is an apologetic
notf in which it is stated that ''the facts were not accurately investi-
gated," and that *' the whoh' of the case was novel in the Fnited States."
-Supra, I. ('ha]>ter X.
'Am. Stat«' Papers, For. Rel. I. UO: British Counter Case and Papers,
Geneva Arbitration, American reprint, 564.
5G27— VOL. 4 47
f
3972 INTERNATIONAL ARBITRATIONS.
''No privateer of any of the powers at war with Fraiicie coming within
a district of the United States can, by the twenty -second article of our
treaty with France, oii.juy any otiier ])rivilege than that of purchading Bach
victuals as shall bo necessary for her ^oing to the next port of the prince
or state from which slie has her commission. If she should do anything
besides this, it U immediately to bo reported to the governor and the
attorney of the district. You will observe, by the rules transmitted, that
the term * privateer' is understood not to extend to vessels armed for mer-
chandise and war, commonly called with us letters of marque, nor. of
course, to vessels of war in the immediate service of the government of
either of the powers at war.
''No armed vessel which has been or shall be originally' fitted out in any
port of the Tuited States by either of the parties at war is henceforth to
have asylum in any district of the United States. If any such armed
vessel shall appear within your district, she is immediately to be notified
to the governor and attorney of the district, which is also to be done in
respect to any prize that such armed vessel shall bring or send in. At
foot is a list of such armed vessels of the above description as have
hitherto come to the kuowledge of the Executive.
"The purchasing within and exporting from the United States, by way
of merchanditrie, articles commonly call<;d contraband, being generally
warlike instruments and military stores, is free to all the parties at war
and is not to be interfered with. If our own citizens undertake to carry
them to any of those parties, they will be abandoned to the penalties
whi<h the laws of war authorize.
*' You will be ])articularly careful to observe, and to notify as directed
in other instances, the case of any citizen of the United States who shall
bo found in the service of either of the parties at war.
" In case any vessel shall be foun<l in the act of contravening any of the
rules or principles whiih are the ground of this instruction, she is to be
refused a clearance until she shall have <omplied with what the governor
shall have decided in reference to her. Care, however, is to be taken in
this not unnecessarily or unreasonably to embarrass trade or to vex any of
the j>artie8 <*onccrne(l.
** In onler that contraventions may In- the better ascertained, it is de-
sired that the olliccr who shall tivst go on board any vessel arriving within
your distriet shall mak<' an aciMirate survey of her then condition as to
military equijiment, to be forthwith re]>ortod to you, and that prior to her
clearanc«.* a like siirv<\v I>c made, that any transgression of the rules laid
down may be ascertained.
"But as the pro])riety of any such inspection of a vessel of war in the
immediate service of the government of a foreign nation is not without
question in referrnce to the usage of nations, no attempt is to be made to
inspect any such vessel till further order on the jxjint.
"The pH'sident desires me to signify to you his most particular expecta-
tion that the instruction contained in this letter will be executed with the
greatest vigilance, care, activity, and inij»artiality. Omissions will tend
to expose the Uovernmcnt to injurious imputations and suspicions, and
proportionably to commit the good faith and peace of the (Country, objects
of too njuch importan(;o not to en«iage every juo^nr exertion of your zeaL
** I am, etc.,
•Ai.KXA.NDbu Hamilton.
NEUTRALITY. 3973
"SCHEDl'LK OF Rl'LE8.
'^ 1. The original arming and equipping of vessels in the ports of the
United States by any of the belligerent parties for military service, offen-
sive or defensive, is deemed unlawful.
**2. Equipments of merchant vessels by either of the bMligerent parties
in the ports of tho United States, purely for the accommodation of them
as such, is deemed lawful.
'^ 3. Equipments in the ports of the United States of vessels of war in
the immediate service of the government of any of the belligerent parties
which, if done to other vessels, would be of a doubtful nature as being
applicable either to commerce or war, are deemed lawful; except those
which shall have made prize of the subjects, people, or property of France
coming with their prizes into the ports of the United States, pursuant to
the seventeenth article of our treaty of amity and commerce with France.
** 4. Equipments in the ports of the United States, by any of the parties
at war with lYance, of vessels fitted for merchandise and war, whether
with or without commissions, which are doubtful in their nature as being
applicable either to commerce or war, are deemed lawful; except those
which shall have made prize, etc.
''5. Equipments of any of the A'e^sels of France in the ports of the
United States which are doubtful in their nature as being applicable to
commerce or war arc deemed lawful.
*'H. Equipments of every kind in the port« of the United States of
privateers of the powers at war with France are deemed unlawful.
" 7. Eciuipments of vcksoIs in the ports of the United States which are
of a nature solely adapted to war are deemed unlawful; except those
stranded or wrecked, as mentioned in the eighteenth article of our treaty
with France, the sixteenth of our treaty with the United Netherlands, the
ninth of our treaty with Prussia; and except those mentioned in the nine-
teenth article of our treaty with France, the seventeenth of our treaty
with the United Netherlands, the eighteenth of our treaty with Prussia.
''8. Vessels of either of the parties not armed, or armed previous to
their coming into the ports of the United States, which shall not have in-
fringed any of the foregoing rules, may lawfully engage or enlist therein
their own subjects or citizens, not being Inhabitants of the United States;
except privateers of the ])owers at war with France, and except those ves-
sels which shall have made prize, etc."
Jefferson's note of September 5, 179.'5, Mr. Jeftersoii addressed
September 6. to Mr. Hammond the following note: *
*^ Pmij^^DKLPiiiA, Si-piemher 7, J703.
'' Sir : I am honored with yours of August 30th ; mine of the 7th of that
month atisured you that measures were taken for exclndnig from all
further asylum in our ports vessels armed in them to cruise on nations
with which we are at i)eace, and for the restoration of the prizes, the
Lovely LatiH^ Prinve William Hennjj and the Jane of Dnhlittf and that,
'Am. Stat« Papers, For. Rel. 1. 174.
f
3974 INTERNATIONAL ARBITRATIONS.
should the measures for restitution fail in their eii'ect, the President con-
sidered it as incumbent on the United States to make compensation for
the vesHols.
** We are bound by our treaties with three of the belligerent nations, by
all means in our power ^ to protect and defend their vessels and eflects in
onr ports or waters, or on the seas near our shores, and to recover and
restore the same to the right owners when taken from them. If all the
means in our i)ower are used, and fail in their effect, we are not bound by
our treaties with those nations to make compensation.
*' Though we have no similar treaty with Great Britain, it was the
opinion of the President that we sliould use towards that nation the same
rule, which, under this article, was to govom us with the other nations,
and even to extend it to the captures made on the high 8ea»y and brought
into our ports, if done by vessels which had been armed within them.
"Having, for particular reasons, forborne to use aH the meant in our
poioer for the restitution of the three vessels mentioned in my letter of
August 7th, the President thought it incumbent on the United States to
make compensation for them ; and though nothing was said in that letter
of other vessels taken under like circumstances and brought in after the
5th June and before the.date of Ihai lettevj yet, where th<^ same forbearance
had taken place, it was and is his opinion that compensation would be
equally due.
"As to prizes made under the same circumstances and brought in
after the date of that letter, the President determined that all the means in
our power should be used for their restituticm. If these fail, as we should
not be bound by our treaties to make comi)en8ation to the other powers
in the analogous case, he did not mean to give an opinion that it ought
to be done to Great Britain. Hut still, if any cases shall arise subsequent
to that date the circumstances of which shall place them on similar
ground with those before it, the President would think compensation
equally incumbent on the United States.
"Instructions are ^iveii to the governors of the different States to use
all the means in their j)ower lor restoring prizes of this last description
found within their i)orts. Though they will, of course, take measures to
be informed of them, and the general ;^overniiient has given them the aid of
the custom-house ofliccrs for this purpose, yet you will be sensible of the
importance of multiplying the clianiiels of their information, as far as
shall depend on yourself or any persons under your direction, in order
that the governors may use the means in their power for making restitu-
tion. Without knowledge of tin* cajiturc they can not restore it. It
Avill always be best to give the notice to them directly; but any informa-
tion which you sli.ill be ]>leased to send to me also at any time shall be
forwanled to them as (juickly as distaiue will permit.
" Hence you will perceive, sir, that the Pr("sident contemplates restituUan
or compcnxation in the cases, before tlie 7th of August, and after that date,
restitution, if it can l>e effected by any means in our power; and that it
will be important that you should substantiate the fact that such prizes
are in our i)orts or waters.
"Your list of the privateers illi<'itly arme«l in our ports is, I believe
correct.
NEUTRALITY. 3975
" With respect to losses by detention, waste, spoliation, sustained by
vessels taken as before mentioned, between the dates of June 5th and
August 7th, it is proposed, ns a provisional measure, that the collector of
the customs of the district and the British consul, or any other person yon
pleast*, shall appoint persons to establish the value of the vessel and cargo
at the time of her capture, and of her arrival in the port into which she
is brought, according to their valne in that port.
'^ If this shall be agreeable, and you will be pleased to signify it to me,
with the names of the prizes understood to be of this description, instrac-
tions will be given accordingly to the collectors of the customs where the
respective vessels are.
'* I have the honor to be, etc.,
"Tii. Jefferson.'
In explanation of this letter it may be observed that it was
on tlie 5th of June that Jefferson informed Genet of the Pres-
ident's decision that the fitting out and arming of privateers
by the belligerent powers in the ports of the United States was
unlawful, and also of the President's desire that all privateers
that had been so armed should depart, l^he decision and the
desire were both disregarded. On the 7th of August, there-
fore, the President, having determined to carry his decision
into effect, caused Genet to be acquainted that he considered
it the duty of the United States either to restore or to make
compensation for prizes taken subsequently to the 5th of June
by privateers fitted out of their ports, and that in future the
United States would take " efficacious measures," both to pre-
vent the fitting out of such privateers and to exclude them
from their jurisdiction; but, as to vessels taken and brought
in between June 5 and August 7, it was left to Genet to cause
the restitution to be made, in default of which the United
States undertook to make compensation, looking to France for
reimbursement. Among the vessels in this category were the
Jane of Dublin^ the Lovely Lass, and the Frince William
Henry ^ British vessels, taken between the 28th of June and
the 24th of July by Le Citoyen Qenet, As they were not re-
stored, the United States by the note of September 5 engaged
to make compensation for them, as well as for any others in
tlie same category. As to vessels brought in after the 7th of
August, the President promised restitution, if it could be
effected "by any means in our power;" but in respect of
such vessels no compensation was admitted to be due, unless
there should be some forbearance to use all the means of
restitution.
f
3974 INTERNATIONAL ARBITRATIONS.
should the measures for restitution fail in their eli'ect, the President con-
sidered it as incumbent on the United States to make compensation for
the vessels.
'' We are bound by our treaties with three of the belligerent nations, fry
all means in our power, to protect and defend their vessels and effects in
our i)ort8 or waters, or on the seas near our shores, and to recover and
restore the same to the right owners when taken from them. If all the
means in our power are used, and fail in their effect, we are not bound by
our treaties with those nations to make compensation.
'* Though we have no similar treaty with Great Britain, it was the
opinion of the PreHideut that we should use towards that nation the same
rule, which, under this article, was to govom us with the other nations,
and even to extend it to the captures made on the high seae, and brought
into our })orts, if done by vessels which had been armed within them.
'' Having, for particular reasons, forborne to use all the meang in. our
power for the restitution of the three vessels mentioned in my letter of
August 7th, the President thought it incumbent on the United States to
make compensation for them ; and though nothing was said in that letter
of other vessels taken nuder like circumstances and brought in after the
5th June and before the.daie of that letter, yet, where the same forbearance
had taken place, it was and is his opinion that compensation would be
equally due.
^'As to prizes made under the same circumstances and brought in
after the date of thai letter, the President determined that all the means in
our power should be used lt)r their restitution. If these fail, as we should
not bo bouud by our treaties to make compensation to the other powers
in the analogous case, he did not luoan to give an opinion that it ongbt
to be done to Great Britain. But still, if any cases shall arise subsequent
to that date the circumstances of which tshall place them on similar
ground with those before it, the President would think compensation
equally incumbent on the United States.
''Instructions are ^iAcu to the governors of the different States to use
all the means in their power for restoring prizes of this last description
found within their ports. Though thej' will, of course, take measures to
bo informed of them, and the general government has given them the aid of
the custom-house oflicers for this i)uri)08e, yet you will be sensible of the
importance of multiplying the channels of their information, as far as
shall depend on yourself or any jiersons under your direction, in order
that the governors may use the means in their power for making restita-
tion. Without knowledge of th<» capture they can not restore it. It
will always be best to give the notice to them directly; but any informa>
tion which you sL.ill be ]deased to send to me also at any time shall be
forward(Ml to them as quickly as distance will permit.
*' Hence you will perceive, sir, that the President contemplates re«h'/ii<jon
or ctnnpensatiou in the cases, before the 7th of August, and after thnt date,
restitution f if it can l»c effected by any means in our power; and that it
will 1)0 important that you should substantiate the fact that such prizes
are in our i)ort8 or waters.
*' Your list of the privateers illicitly armed in our ports is. I believe,
correct.
NEUTRALITY. 3975
^* With respect to losses by detention, waste, spoliation, sustained by
vessels taken as before mentioned, between the dates of June 5th and
August 7th, it is proposed, as a provisional measure, that the collector of
the customs of the district and the British consul, or any other person you
please, shall appoint persons to establish the value of the vessel and cargo
at the time of her capture, and of her amval in the port into which she
is brought, according to their value iu that port.
*^ If this shall be agreeable, and you will be pleased to signify it to me,
with the names of the prizes understood to be of this description, instruc-
tions will be given accordingly to the collectors of the customs where the
respective vessels are.
'* I have the honor to be, etc.,
"Tii. Jefferson. '
In explanation of this letter it may be observed that it was
on the 5tb of Jnne tbat Jefferson informed Genet of the Pres-
ident's decision tbat tbe fitting oat and arming of privateers
by tbe belligerent powers in tbe ports of tbe United States was
unlawful, and also of tbe President's desire tbat all privateers
tbat bad been so armed sbould depart, l^be decision and tbe
desire were botb disregarded. On tbe 7th of August, there-
fore, tbe President, having determined to carry his decision
into effect, caused Genet to be acquainted tbat be considered
it tbe duty of tbe United States either to restore or to make
compensation for prizes taken subsequently to the oth of June
by privateers fitted out of their ports, and tbat in future the
United States would take ^^ efficacious measures," both to pre-
vent tbe fitting out of -such privateers and to exclude them
from their jurisdiction; but, as to vessels taken and brought
in between June 5 and August 7, it was left to Genet to cause
tbe restitution to be made, in default of which the United
States undertook to make compensation, looking to France for
reimbursement. Among tbe vessels in this category were the
Jane of Dublin^ tbe Lovely LasSy and tbe Prince William
Henry J British vessels, taken between the 28tb of June and
tbe 24tb of July by Le Citoyen Oenet. As they were not re-
stored, tbe United States by the note of September 5 engaged
to make compensation for them, as well as for any others in
tbe same category. As to vessels brought in after the 7tb of
August, tbe President promised restitution, if it could be
effected ''by any means in our power;'' but in respect of
such vessels no compensation was admitted to be due, unless
there should be some forbearance to use all the means of
restitution.
397fi INTERNATIONAL ARBITRATIONS.
September 7, 1793, Mr. JeflFerson addressed
Prohibition of French a i^ljl-^j. ^^ ^1,^ Freucli coiisuls, requiring them
Coninli to Exercise . . • • • j: ^* i rm.*
«-i T • J -u to cease to exercise prize jarisdiction/ This
Pnie Junsdiction. ^ ^
letter was as follows:
" Philadelphia, Sept, 7, 1793.
*'Sik: Findiiij; by tbe protests of several of the consuls of France, by
their advertiseiuentH in the public papera, and other proceedings, and by
other Biitticicnt testimony, that they claim and are exercising within the
United States a general admiralty .jurisdiction, and in particular assame
to try the validity of prizes, and to give sentence thereon, as judges of
admiralty, and, moreover, that they are undertaking to give commissions
within the United States, and to enlist or encourage the enlistment of
men, natives or inhabitants of these States, to commit hostilities on
nations with whom tbt^ United States are at ])eace, in direct opposition
to tbe laws of tbe land: 1 have it in charge, from the President of the
United States, to give notice to all the consuls and vice-consula of France
in tbe United States, as I hereby do to yon, that if any of them shall
commit any of the acts before mentioned, or assume any jurisdiction not
expressly given by tbe convention between France and the United States,
the exequatur of tbe consul so transgressing will be immediately revoked,
and his person be submitted to such prosecutions and punishments as the
laws may prescribe lor tlie case.
'* I have the honor to be, etc.,
"Tn. Jefferson.
''Citizen Fuancois Dupont,
**Co««m/, Philadelphia.
*' Citizen Molssonieh,
** lice-Consul, Maryland.
''Citizen MAX(ioUNT,
^'CofiHHl, Charleston.
"Tlie Citizen IIautekivk,
** Consul from the Republie of France, at New York.^'
In tbe discharge of the neutral obligatioDs
n 0 ern n , wiiidi the ( loveminent of the United States
Protection. "^
acknowleaffed itself to be bound, it became
necessary to determine the distance from the coast to which
the duty of protection extended. On this subject Mr. Jeffer-
son addressed to Mr. Hammond the following note:
*'(ii:uMANrowx, Xovemher 8^ 1793.
"Sir: Tbe President of tbe United States, thinking that, before it shall
be finally decided to what dist.nue from our seasliores tbe territorial pro-
tection of the United States shall be exorcised, it will be proper to enter
into friendly cimferences ai»d explanations with the powers chiefly inter-
ested ill the navigation of the seas on our coasts, ami relying that conven-
ient occasions may be taken for these hereafter, linds it necessary in the
' Am. State Papers, For. liel. I, 175.
NEUTRALITY. 3977
mean time to fix provisionally on some distance for the present govern-
ment of these questions. Yon are sensible that very different opinions
and claims have been heretofore advanced on this subject. The greatest
distance to which any respectable assent among nations has been at any
time given has been the extent of the human sight, estimated at upward
of twenty miles, and the smallest distance, I believe, claimed by any na>
lion whatever is the utmost range of a cannon ball, usually stated at a sea
league. Some intermediate distances have also been insisted on, and that
of three sea leagues has some authority in its favor. The character of our
coast, remarkable in considerable parts of it for admitting 710 vessels of
size to pass near the shores, would entitle us, in reason, to as broad a mar-
gin of protected navigation as any nation whatever. Reserving, however,
the ultimate extent of this for future deliberation, the President gives
instructions to the officers acting under his authority to consider those
heretofore given them as restrained for the present to the distance of one
sea league or three geographical miles from the seashores. This distance
can admit of no oppositiou, as it is recognized by treaties between some
of the powers with whom we are connected in commerce and navigation,
and is as little, or less, than is claimed by any of them on their own coasts.
" For the jurisdiction of the rivers and bays of the Uniti*d States, the
laws of the several States are understood to have made provision, and they
are, moreover, as being landlocked, within the body of the United States.
''Examining, by this rule, the case of the British brig Fanny, taken on
the 8th of May last, it appears from the evidence that the capture was
made four or five miles from the land, and conHe({uently without the line
provisionally adopted by the President, as before mentioned.
"I have, etc.,
**Th. Jefferson."'
The foregoing note was followed by another, in which it was
l)roposed that where a vessel captured by one of the belliger-
ents should be reclaimed as having been taken in violation of
the neutrality of the United States, persons should be ap-
pointed as representatives of the governments concerned to
ascertain the facts and decide what should be done.^
On February 18, 1794, however, the Supreme
Deeiflion of the Su- q^^^.^ rendered, in the case of the sloop Betsey,
Prize^Jurisdiction** ^ decision that dissipated the doubts which
had existed as to the jurisdiction of the courts
of the United States to intervene in respect of prizes made by
cruisers illegally fitted out and armed in the United States.
' British Counter Case and Papers, Geneva Arbitration, American reprint,
553.
^ Mr. Jefferson to Mr. Hammond, November 10, 1793, British C'ounter
Caao and Papers, Geneva Arbitratiou, American reprint, 554. See, also,
circular of Mr. Hamilton, Secretary of the Treasury, to collectors of
customs, February 10, 1794, id. 5G8.
3978 INTERNATIONAL ARBITRATIONS.
The Betsey was captured by Le Citoyen Genet and brought into
Baltimore, where she was libeled for restitution in the district
court of the United States for the district of Maryland* The
captor pleaded to the jurisdiction, and his plea was sustained.
The Supreme Court reversed the decree of the district court
and remanded the case for final decision on the merits, holding
that the district court, being ix)sse8$ed of all the powers.of a
court of admiralty, instance as well as prize, was comi)etent
to decide whether restitution should be made, and that the
admiralty jurisdiction which had been exercised by the French
consuls in the United States was unwarranted and ^^ not of
right." '
This decision was followed by theact of June
^* j^e^s^TJi "^ ^' ^'^'•^^' defining the duties of neutrality and
providing for their execution, as followB:
**8ec. 1. lie it enacted and declared by the Senate and House of Representa-
tives of the VniU'd Staien of America in Congress assembled, That if any citi-
zen of tho Tnited States Hliall, within the territory or jurisdiction of the
HaiiH'y accept and cxerclBe a connnission to serve a foreign prince or state
in war hy land or sea^ the [>er8on ho otlending shall be deemed guilty of a
high niiHdeuieanor, and shall be iined not more than two thousand dollars,
and shall 1>e imprisoned not exceeding three years.
**.Skc. 2. And be it furthr enacted and declared. That if any person shall
within the territory or jurisdiction of the Tnitod States enlist or enter
himself, or hire or retain another [lerson to enlist or enter himself, or to
go l»ey(»nd the limits or jurisdiction of the United States with intent
to be enlisted or entered in the service of any foreign prince or state as a
soldier, or as a marine or seaman on board of any vessel of war, letter of
manpie or private* r, every person so olVending shall be deemed guilty
of a high misdemeanor, and shall be lined not exceeding one thousand
dollars, and bo impriscmed not exceeding three years: Provided, That this
shall not be construed to ext<*nd to any subject or citizen of a foreign
prince or state who shall transiently bo within the United States and shall
on l»oard of any vessel of war, letter of marque or privateer, which at the
time of its arrival within the Ignited States was litted and equipped as
such, enlist or enter himself or hire or retain another subject or citizen of
the same foreign jnince or state, who is transiently within the United
States, to enlist or enter himself to serve such ])rince or state on board
such vessel of war, letter of manjue (►r privateer, if the United States shall
then be at peace with such inince or state: And provided further, That
if any person so enlisted shall within thirty days after such enlistment
voluntarily discover, u]>on oath, to some Justice of the ])eace or other civil
magistrate the person or {>ersons by whom hr was so enlisted, so as that
he or they may be apprehended and convicted of the said offence, snch
person so discovering the offender or oll'enders shall be indemnified from
the penalty prescribed by this act.
' Class V. The Sloop lietscij, 3 Dallas, 6.
NEUTRALITY. 3979
"Skc. 3. And be it further enacted and declared, That if any person shall
within any of the ports, harbors, hays, rivers or other waters of the United
States, tit oot and arm or attempt to tit out and arm or procure to be fitted
out and armed, or shall knowingly be concerned in the furnishing, fitting
out or arming of any ship or vessel with intent that snch ship or vessel
shall be employed in the service of any foreign prince or state to cruise or
commit hostilities upon the subjects, citizens or property of another for-
eign prince or state with whom the United States are nt peace, or shall
issue or deliver a commission within the territory or jurisdiction of the
United States for any ship or vessel to the intent that she maybe employed
as aforcHaid, every such person so otf ending shall upon conviction be ad-
judged guilty of a high misdemeanor, and shall be fined and imprisoned
at the discretion of the court in which the conviction shall be had, so as
the fine to be imposed shall in no case be more than five thousand dollars
and the term of imprisonment shall not exceed three years, and every such
ship or vessel with her tackle, apparel and furniture together with all
materials, arms, ammunition and stores which may have been procured
for the building and equipment thereof shall be forfeited, one-half to the
use of any person who shall give information of the ofiense and the other
half to the use of the United States.
Skc. 4. And be it further enacted and declared, That if any person shall
within the territory or jurisdiction of the United States increase or aug-
ment, or procure to be increased or augment<^d, or shall be knowiiigly con-
cerned in increasing or augmenting the force of any ship of war, cruiser
or other armed vessel which at the time of her arrival within the United
States, was a ship of war, cruiser or armed vessel in the service of a for-
eign prince or state or belonging to the subjects or citizens of such prince
or state the same being at war with another foreign prince or stiite with
whom the United States are at peace, by adding to the number or size of
the guns of such vessel prepared for use, or by the addition thereto of any
equipment solely applicable to war, every such person so otfending shall
upon conviction be adjudged guilty of a misdemeanor, and shall be fined
and imprisoned at the discrection of the court in which the conviction
shall be had, so as that sucii fine shall not exceed one thousand dollars,
nor the term of imprisonment be more than one year.
Skc. 5. And be it further enacted and declared, That if any person shall
within the territory or jurisdiction of the Unit<'d States begin or set on
foot or provide or pre])are the means for any military expedition or enter-
prise to be carried on from thence against the territory or dominions of
any foreign prince or state with whom the United States are at peace,
every such person so offending shall upon (conviction be adjudged guilty of
a high misdemeanor, and shall siilVer line and imprisonment at the discre-
tion of the court in whicli tlu' conviction shall he had, so as that snch fine
shall not exceed three thousand dollars nor the term of imprisonment be
more tlian three years.
'*Sk('. (). And be it further enacted and declared. That the district courts
shall take cognizance of complaints by whomsoever instituttid, in cases of
capture^ made within the waters of the United States, or within a marine
league of the coasts or shores thereof.
"Sec. 7. And be it further enacted and declared. That in every case in which
3980 INTERNATIONAL ARBITRATIONS.
a veBRel shall be fitted out and armed, or attempted so to be fitted oat and
armed, or in which the force of any vessel of war, crniser or other armed
vessel, shall be increased or augmented, or in which any military expedi-
tion or enterprise shall be begun or set on foot contrary to the prohibitious
and i)rovision8 of this act; and in every case of the capture of a ship or
vessel within the jurisdiction or protection of the United States as above
defined, and in every case in which any process issuing out of any court of
the United StatevS, shall be disobeyed or resisted by any person or persons
having the custody of any vessel of war, cruiser or other armed vessel of
any foreign prince or state, or of the subjects or citizens of such prince or
state, in every such case it shall be lawful for the President of the United
States, or such other person as he shall have empowered for that purpose,
to employ such part of the land or naval forces of the United States or of
the militia thereof as shall be judged necessary for the purpose of taking
possession of, and detaining any such ship or vessel, with her prize or prizes
if any, in order to the execution of the prohibitions and penalties of this
act, and to thi^ restoring such prize or prizes, in the cases in which resto*
ration shall have been adjudged, and also for the purpose pf preventing
the carrying on of any such expedition or enterprise from the territories
of the United States against the territories or dominions of a foreign prince
or state, with whom the United States are at peace.
"Skc. 8. And he it further enacted and declaredf That it shall be lawful
for the President of the United States, or such other person as he shall
have empowered for that purpose, to employ such part of the land or
naval forces of the Unified States or of the militia thereof, as shall be
necessary to comi)el any foreign ship or vessel to depart the United States,
in all cases in which, by the laws of nations or the treaties of the United
States, they ought not to remain within the United States.
*' Skc. 9. And he it further enacted. That nothing in the foregoing act
shall be construed to prevent the prosecution or punishment of treason,
or any piracy defined by a treaty or other law of the United States.
"Sec. 10. And he it further niacted, That this act shall continue and be
in force for and during the term of two years, and from thence to the end
of the next session of (Congress, and no longer.
"Approved, June 5, 1794.*' '
Briefly summarized, this act forbade : 1. The acceptance and
exercise by a citizen of the United States, within the jurisdic-
tion thereof, of a commission to serve a foreign belligerent.
2. Enlistments in the United States. 3. The fitting out and
arming of vessels. 4. The augmenting or increasing the force
of armed vessels. 5. The setting on foot of njilitary expedi-
tions. The President was authorized to use the land and naval
forces for the execution of these provisions, as well as for the
' 1 stats, at L. 381. This art was continued in Tone by the act of March
2,1797, for an additional period of two years and to the end of the next
session of Congress thereafter. (Id. 497.) By the act of April 24, 1800,
it was continued in folce indeliuitely. (2 id. 54.)
NEUTRALITY. 3981
purpose of compelling any foreign ship or vessel to depart,
when by the law of nations or the treaties it ought not to re-
mainJ The decision of the Supreme Court and the act of Con-
gress blazed the way for the judicial tribunals, and enabled
them to interpose with purpose and eflfect in cases involving
the obligations of neutrality. Where there was no substantial
increase,^ or where there was a mere replacement^ of force in
the United States, or where the cruiser, though first fitted out
and armed in the United States, was, after having been reduced
there to her original condition, subsequently armed and com-
missioned in a home i)ort,^ or where there was no distinctively
warlike equipping and arming in the United States,^ restitu-
tion was refused. But, where the cruiser was illegally fitted
out and armed in the United States, her i)rizes were, if brought
within the United States, restored.*^ Such was the rule, though
it is possible that it may not have been lully or correctly applied
in every case.
In proceeding now to examine the cases that
Obligations of United ^ame before the commission under Article VII.
SrJn.'^LX" ""^ ^^'"^ •^^y ^^^^^^^ ^^® language of which has
Treaty. already been (luoted, it is important to bear
in mind precisely what were the obligations of
the United States under that article.
1. The article recites that British subjects have suffered loss
and damage by reason of the capture of their vessels and mer-
chandise (a) "taken within the limits and jurisdiction of the
States and brought into the ports of the same'' (b) "or taken
by vessels originally armed in ports of the said States.''
2. The article provides that the commission shall exercise
jurisdiction " in all such cases where restitution shall not have
> U, S. V. Cfuinet, Wharton's State Trials, 93.
^ Moodie v. Ship Brothers, Bee, 76.
K¥oodie v. The Shij) Phabe Aniie, 3 Dallas, 319.
•• Williamson v. Jirig Jictscy, Bee, 67; British Consul v. Ship Marmaid^ Bee,
69.
''Moodie V. The Ship Alfred, 3 Dallas, 307.
6 Talhot V. Jannen, 3 Dallas, 133; (ieyer v. Michel, 3 Dallas, 285; Moodie v.
Bitty Cathvart, Bee, 292 ; 3 1 )allas, 288, note. ** The principle is now lirmly
settled tliat prizes made by vessels which have violated the acts of Con-
gress that have been enacted for tlie preservation of the neutrality of the
United States, if brought within their territory, shall be restored.*' Mar-
shall, C J., The (iran Para, 7 Wheaton, 471, 486. See Saiitissima Tnnidadf
1 Brockcnborough, 470.
r
3982 INTERNATIONAL ARBITRATIONS.
been made agreeably to the tenor of tlie letter from Mr. Jeffer-
son to Mr. Hammond, dated at Philadelphia, September 5,
1793."'
Thus the obligation of the United States to make compensa-
tion in the cases mentioned in the first clause is measured by
the tenor of the letter described in the second.
By that letter the United States acknowledged their obliga-
tion—
1. To restore vessels captured within their jurisdiction.
2. To restore vessels captured on the high seas and brought
into their ports by cruisers armed within them, where sncli
vessels were captured and brought in after June 5, 1793.
3. To make compensation where, as in the cases of the Lovely
LaaSy the Jane of BuhUn, and the Prince Willmm Henrys they
had forborne to use all the means in their power to perform
obligations 1 and 2.
In this relation it should be observed that obligation 1 does
not appear to have been limited to vessels captured and brought
in after June 5, 1793. In the cases of the brig Fanny and the
ship William, both of which were captured and brought into
port before that date, the United States disclaimed any obliga-
tion to make restitution on the ground that the vessels were
captured more than a marine league from the coast, which the
President had provisionally adopte<l as the limit of the protec-
tion of the United States. It was impliedly admitted that
restitution >vould have been due if the captures had been made
within that belt.' It has already been pointed out that the
reason for this distinction was that it was on the date men-
tioned that the position of the United States in regard to the
privateers fitted out and armed in their ports was taken, while
the obligation to extend protection to vessels within their juris-
diction was previously admitted. We have seen that in the
case of the shix> Granffc, which was captured in the Delaware
Bay and brought into Phila(leli)hia in Ai)ril 1793, restitution
was not only acknowledged to be due, but was actually
eftected.
When the commission under Article V^II.
Limits of obligation (j.jj,j^, ^^ deliberate on the claims of British sub-
as to restitution or ^ A. .X 4X . i-i-li. J. Jf
^ jects, the first question that arose grew out of
the recital as to vessels and merchandise
*' taken by vessels originally armed in ports of the said [United]
' Hiitisli Counter Case and Papers, (Jeueva Arbitration, Anu*ricau reprint,
553-554, 5S2.
NEUTRALITY. 3983
States." If this recital could either be substituted for or
added to the terms of the letter of Jefferson to Hammond^ for
the purpose of determining the obligation of the United States
in respect of captures made by vessels originally armed in
their ports, it might be argued that the mere fact of arming in
the United States was sufficient to entitle the claimants to
compensation in such cases — and in fact the argument was
made. Gore and Pinkney, in a letter to Pickering of Decem-
ber 4, 1797, said :
"Some claimants have contended that it was only neceslsary
to prove the capture to have been made by a French vessel
fitted out in the United States in order to entitle them to com-
pensation under that article. This construction is supported
by civilians eminent for their talent as well as official rank and
station in this government.
"They do not hold themselves bound to prove a capacity in
the United States to make restitution by the captured vessel
having been within their jurisdiction, or that the United
States did or neglected to do some act which proved a for-
bearance to use means in their power to make restitution.
"It will likewise be contended that a privateer which re-
ceived any addition to her equipment within the waters of the
United States is a vessel * originally armed in the ports of the
United States' within the meaning of those terms, as used in
the treaty."
The question whether compensation was due
. „ where a vessel, though captured by a cruiser
originally armed in the United States, never
was brought within their jurisdiction, was decided on May 21,
1798, in the case of the ship Jamaica^ Martin, master. The
question was determined in the negative. The grounds on
which it was so determined are set forth in the opinion of
Mr. Gore. And in this relation it is proper to i)oint out
that Mr. Gore, while adopting the letter of Jefferson to Ham-
mond as the test of the responsibility of the United States,
said: "The ground of obligation on the United States to
compensate for loss or damage resulting from a capture by
vessels originally aismied in their ports, was the forbearance on
their part to use the means in their power to restore such cap-
tured property when brought within their jurisdiction. The
counsel for the claimant seemed to suppose that the obligation
to compensate arose from the circumstance of the privateer
being originally armed in the United States, but as there is
not the smallest evidence to induce a belief that, in this or in
any other case the goyeTumeut permitted or in any degree con-
i
3984 INTERNATIONAL ARBITRATIONS.
nived at such arming, or failed to use all the means in their
power to prevent such equipment, there is no f^^ound to sup-
port a charge on the fact that the armament originated in
their ports."
The text of Mr. Gore's opinion is as follows:
Opinionof Mr. Gore. <* Claim by William Hutchius on the United
States, for compensation for the loss and
damage which has accrued to the owners of said vessel and
cargo by the capture thereof by the privateer , said
to have been originally armed in the United States.
"The question of arming in the United States has not been
considered by the board, because it appeared from the claim-
ant's o>vn statement that the capture was on the high seas;
shortly after which, and before her arrival in any port, the said
ship Jamaica and her cargo were burnt and totally destroyed;
and on this point, viz, that the captured i)roperty had never
been within any of the ports of the United States, the board,
one gentleman only dissenting, were of opinion that the case
was not within the stipulation of the article under which the
commissioners act.
**At the reciuest of the claimant the cause has been recon-
sidered and counsel heard, who has endeavored to support the
two following i)ositions, viz, that the statement in the article
of the complaints of His Britannic Majesty's subjects is con-
clusive as to the description of cases, and included every
quality ne<*essary to entitle the claimant to the compensation
promised, without any reference to the letter of Mr. Jeft'erson
to Mr. UammomI, annexed to the treaty, and secondly, that in a
case thus ctircumstanced the law of nations imposes a duty on
the United States to make the compensation required.
"The article states that 'certain merchants and others. His
Majesty's subjects, conjplain that they have sustained loss and
damage by reastm of the capture of their vessels and mer-
chandise, taken within the liujits and Jurisdiction of the States,
and brought into the ports of the same, or taken by vessels
originally armed in ports of said States.'
" The above is the complaint, to which follows the agreement
of the contracting parties, which contains the promise and
stipulation of the United States. It is 'that in all such cases,
where restitution shall not have be<M) nuide, agreeably to the
tenor of the letter from Mr. Jefferson to Mr. Hammond, dated
at Philadelphia, Sept. 5, 179;^, a copy of which is annexed t4>
this treaty, the complaints of the i)artie8 shall be, and hereby
are, referred to the connnissioners to be a])i)ointed by virtue of
this article, who are hereby authorized and reqnired to proceed
in the like manner relative to these as to the other cases
committed to them,' etc.
*'The descriptiim of cases, on which the board is bound to
award compensation, is not c(melusively defined in the com-
plaints of His Majesty's subjects, for in the agreement afore
NEUTRALITY. . 3985
recited it appears they must possess another ingredient and
be conformable to another rule.
*'Tliey must be such cases ' where restitution has not been
made agreeably to the tenor of the aforesaid letter.' To avoid
the natural and obvious effects of these words, it has been
argued that they are introduced merely for the purpose of
avoiding an obligation on the United States to compensate for
injury sustained by capture, etc., in cases where they had
actually effected a restitution of the property captured.
'* It can hardly be conceived that the letter should have
been introduced and made part of this treaty merely to avoid
a charge on the United States, where they had actually
restored the thing captured, 1st, because, if the govern-
ment of said States had caused restitution to be made of
property thus taken, it had done everything which the law
of nations obliged them to do, and the party could have no
just cause of complaint or claim against them for compensa-
tion. Secondly, supposing that a diff'erent idea of the duty of
the United States was entertained, and they were conceived
liable not only to restore the thing captured, but also to com-
pensate for any collateral or conse(]uential damage that might
have resulted from the capture, and that restitution had been
made agreeably to the tenor of that letter, it is not probable
that damage had been sustained to any considerable amount,
or at least to such a degree as to render it a subject for national
negotiation. Neither is it suggested that complaints were
m^e of injury and damage sustained, tho' the property was
restored. And further, if any were, the complainants are
barred according to this construction from claiming it here,
bet^ause the board is authorized only to examine those cases
where restitution has not been made agreeably to the tenor
of that letter, and therefore the parties without burthening
the treaty with this letter might have answered every pur-
pose, if this was their object, by saying 'where the jiroperty
shall not have been restored.'
"The letter, then, must have been introduced, and these
words, ^such cases where restitution has not been made agree-
ably to the tenor of said letter,' to define the circumstances in
which the United States were bound to make restitution, and
on forbearance whereof they were obliged to make compensa-
tion. This construction corresponds with the technical
signification of the words ' according to the tenor,' as used in
legal instruments, both in (ireat Britain and America, .with
the received understanding of the terms in common parlance,
and more especially with their use in diplomatic correspondence
and in treaties between different nations.
''By the words of this i)romise no one can doubt that it
would be a good reply for the United States to make to a claim
for c()mi)ensation that restitution had been made according to
the tenor of said letter. It would have been a satisfactory
answer in the United States to a demand on its government for
t
3986 INTERNATIONAL ARBITKATIONS.
restitutiou that according to the tenor, that is, aecording to
the force and obligation of their promise, as contained in Mr.
Jefferson's letter, they were not bound to make restitation.
*^If such would be a fit answer to a demand for restitutiou,
there can be no reason why it should not be equally just to a
claim for compensation, because that, in the same case, they
had failed to restore.
"To support the claim for compensation under such circum-
stances would be saying that compensation was due for not
restoring where the party complained against was under no
obligation to restore.
"By the promise contained in this letter the United States
were bound to use all the means in their power to restore prizes
taken by vessels originally armed in their ports, if brought
within them. Suppose a vessel to be thus taken, and, after
having been despoiled of most of her cargo on the high seas
by the captors, to arrive in some port of tlie United States, and
that means are there successfully used to restore the vessel,
but from the plunder of her before the arrival not a tenth part
of the i)roperty captured is obtained for the claimants, yet
according to the construction i)ut on this article by the advo-
cate for the claimants no claim for compensation could be
supported, for restitution had been made according to the
tenor of said letter.
'* It would be charging a strange inconsistency in the parties
to this agreement to supi)ose the United States not liable to
restore in the case ])ut, beyond what was in their power, and
also not liable to make compensation for not restoring, and yet,
that in the case before us, where no i)art was ever iu their
power, they were liable to make compensation for the whole.
The sum might be greater iu the former than in the present
case, and therefore the loss to the individual greater in that
than in this instaiiee. The reason for not restoring the whole
in the one case is ])recisely the same as for not restoring a part
in theotiier, and theiefore the demand dt^pendent on the same
principle. A eonstruetiou replete with such contradictions and
injustice ought to be resisted unless absohitely imposed by the
express meaning of the terms. Here the absurdities, flowing
from the construction contended for, only serve to confirm the
evident intention of the i)arties, as derived from the common
and natural force of the terms of the stipulation as before
shown.
"The letter was written by tiie (rovernment of the United
States to attbrd satisfaction to tlie lUitish njinister for com-
plaints of His Majesty's subjects on aceount of loss by them
sustained contrary to the law of nations. It has not been
suggested that the duties of the United States, as therein de-
lined and ai)plying to a case circumstanced as the one under
consideration, were not deemed satisfactory by tliat minister or
his nation. Neither has it ever been contended that they were
liable in analogous cases to restore or to compensate for not
NEUTRALITY* 3987
making restitution where it was not in their power to restore.
It is, therefore, natural to conclude that according to the
understanding of both nations this letter fully and truly defined
the duties of the United States in cases circumstanced like the
present.
^^ However, the advocate for the complainant supposes that
the law of nations obliged the government in such case to make
compensation. If this was true it would be incumbent on us
to strain the language of the article (of which the letter is. as
much a part as any sentence) as far as possible, to bring the
cause within its meaning. To support the doctrine contended
for by the claimant the counsel has introduced the justifying
memorial of His Britannic Majesty in answer to the exposition
of the court of France, and also the memorial of Sir Joseph
Yorke to the States General dated 2l8t February 1777 and the
opinion of Sir Leoline Jenkins in what he considers a like case.
*' The memorials referred to were made during the Ameri-
can war, and contain the complaints of Great Britain for the
countenance and support which these two powers afibrded to
the Unit^ States in that contest, and especially to their ships
of war and their prizes.
'^ The relation which the United States bore to Great Britain
leaves no room to doubt that the duties of France and of the
States General were stated as favorably for the complaining
power, as the law of nations would justify; and that satisfac-
tion for loss or damage was demanded in every case, where
it could be exacted, by virtue of that law, and that complaint
for doing or permitting to be done what the law forbade, or
omitting to do what their duty imposed, could not fail of being
introduced, especially when it is remembered that the justify-
ing memorial against France was written after the commence-
ment of the war between those two crowns. It should also be
observed that Great Britain, in those memorials and in all her
charges against those powers, founded her complaints, not only
on the law of nations, but also on the breach of express stipu-
lations of treaty then subsisting between them and her. She
declares that by the spirit as well as the letter of the treaty of
1763 (in which the parties contract * not to permit any hostili-
ties by land or sea, and to contribute to their mutual glory,
without giving any succor or protection, directly or indirectly,
to those who would do any prejudice to one or other of the
high contracting parties'), France was under obligations to bar
her ports against the American vessels, to forbid her subjects
to have any commerce with that rebellious people, and not to
afford either protection or succor to the domestic enemies of
a crown with which she had sworn a sincere and inviolable
friendship.
''The memorial complains that France ^permitted an under-
hand and dangerous war to issue from her i)orts,' and this
complaint is founded entirely on the ground that all the equip-
ments there made were done with the knowledge and permis-
5027— VOL. 4 48
3988 INTERNATIONAL ARBITRATIONS.
Hion of the government; that by such permission vessels
which the Americans had either built or purchased were armed
and iitted out there to cruise on the coast of Great Britain:
that such vessels, chieHy armed by Frenchmen, who entered
under the eyes of their governors, took many British ships,
reentered the ports of France, where they publicly sold their
prizes in sight of the royal officers, refitted their privateers,
and went out again to make capture of the persons and
property of His Majesty's subjects. A particular vessel is
named which, after the strongest representation of the British
minister against her being sufiered to remain in port, was per-
mitted to stay, and the captain allowed to refit liis ship, to
provide liimself with gunpowder, and also with French sea-
men, and then to go out and cruise on the British, in which
cruise the same privateer, with others, took 15 British ship?,
greater part whereof were carried into the jwrts of France
and sold. No demand was made for compensation for the loss
sustained by reason of these captures.
" But on representations being made of the injury received
by these equipments and sales of prizes, it was deemed satis-
factory by the British crown that the King of France dechired
his resolution to banish the American corsairs from his ports,
an<l that in future he would take the most rigorous measures
to prevent the sale of prizes taken from the subjects of Great
Britain.
'' Surely then the conclusion to be drawn from this memorial
is directly the reverse of what is contended ibr by the claim-
ant's counsel. The cases stated have a much stronger claim
on a government for coin])ensati()n than those described in
Mr. Jerterson-s letter; for the privateers, it is declared, were
fitted out with the knowledge and permission of the French
Government; that the prizes taken ])y vessels thus fitted out
were brought in and publicly sold under the ]>rotection of the
royal otlicers, who, in affording this protection, conformed
themselves to the French ministry, luid yet it was deemed a full
satisfaction that tlie goverinnent i)romised to banish the cor-
sairs and in futurr prohibit the sale of prizes. Not even a
demand was nuule tliat the ju^izes shoahl be restored, tho' in
the power of France to make t\w. restitution, much less that
compcnisation should be made* by the j»<)vernment for the loss
sustained from not restoring th(»s(* which had not been brought
into their jnirts, altho' taken by vessels fitted out against the
remonstrances of the British njinister and by the permission
of the (Jovernment of France.
"The memorial of Sir Joseph Vorke states *that the gover-
nor of St. Eustatia connived at the hostile eciuipment of the
Americans and permitted the s<*izure ot an Knglish vessel by
an American ])irate within cannon shot of that island, and did
also return from the fortress ol his government the salute of
a rebel flag.'
"The language used on this occasion by the British envoy
NEUTRALITY. 3989
discovered no disposition to abate, in any degree, of the just
demands wbich the law of nations authorized hini to make on
the States (leneral.
'<The satisfaction demanded was a disavowal of the salute
by Fort Orange at St, Eustatia and the dismission and recall
of the governor. No demand is made for restitution of the
English vessel or for compensation for not restoring her, tho\
by the allegation, the governor forbore to use the means in
his i)ower to defend the said vessel while within the jurisdic-
tion of the island or to restore her after the capture.
^^The case stated from Sir Leoline Jenkins is that of a Dutch
vessel forcibly taken out of the waters of England, by a French
ship of war, and carried to France as prize. *
<^ On a memorial to the King of England on this subject. Sir
Leoline gives his opinion in the following words, viz: 'A repa-
ration is justly due to Your Majesty for the indignity offered
by taking the Dutch ship out of your protection, and the repa-
ration can not be a full and complete one unless the ship and
goods be restored, or else the full equivalent thereof, with the
damages. 'Tis true the Dutch are not in a capacity to make
a direct demand for such restitution from the French, yet if the
wrongdoer do carry away and enjoy the fruits of his violence,
and the innocent ally be bound to sit down by his loss, the
rights of ports will be thought not asserted to the full, since
they consist not only in the reverence due to the government,
but in the indemnity of all parties for the punishment of an
unjust violence, such as this is, and which undoubtedly belongs
to Your Majesty, and to Your Majesty alone, to punish. The
affront to authority must in the first place be expiated, but
then the loss to the party violated ought to be fully made up.
However, the time and manner of demanding this reparation
is not (can not be) prescribed by any rule of law that I know
of; therefore I shall not presume to speak anything in it, Your
Majesty's reasons of state and your royal resentment being
the proper measures of demand.'
"What demand the memorial stated does not appear; but
there is not the smallest pretense, from the opinion of Sir L.
Jenkins on this case, to say that the British King was liable
to effect a restitution or make compensation. Evidently, in
his judgment, any satisfaction to be made was to come from
France. The Dutch, as they were then at peace with the
French, might demand it themselves; but as the King's dignity
had been injured he was authorized to require a full repara-
tion, thougii the time and manner of demanding the reparation
was to depend solely on His Majesty's reasons of state and
royal resentment.
'*This case was introduced by the learned advocate to sup-
port, on the authority of Sir L. Jenkins, the doctrine that a
neutral nation is obliged by the droit public to use all the ^^
means in her power to restore the property of the subjects ot^^^
3990 INTERNATIONAL ARBITRATIONS.
another nation, taken within her jurisdiction by the enemie«
of the captured, or by vessels originally armed in her ports,
whether brought therein or not; that the means in her power,
and which she is obliged to use, are to make war against the
capturing nation, and that, if she fail to make use of such
extreme means, she is bound to make compensation to the
individuals injured. It is impossible to read that opinion and
not to form a directly diflferent conclusion as to the means to
be used and the obligation on the neutral state in failure of
those means.
"According to the principles of justice, on which is founded
the law of nations, no government can be liable to compensate
for an injury which they did not commit, or for not preventing
a loss when out of their power to prevent it, or for not using
means in their power to restore property wrongfully taken,
when such property never came within the reach of those
means. The law of nations is thus laid down by Puflfendorf
and Grotius :
'*'One people may offend another directly, when by order of
their sovereign they cause a damage to be done to another in
any manner, or indirectly, when a sovereign does not punish
the mischiefs done by his subjects to another people, or, if he
could hinder them, doth not; as, for example, if he does not
use the best means he cim and ought to prevent or restrain
robberies and piracies; if he affords a reception to those who
have wronged and injured the state; in all those cases he is
obliged to restitution.' (Puff*. 3 B, 1 C. 11 sect, note.)
"* Kings and magistrates are bound to make reparation, if
they do not use such means as they may and ought to prevent
robbery and piracy. The States had granted letters of marque
to many of their subjects to take prizes from their enemy,
some of whom robbed their own subjects, and deserting their
native country roved about upon the seas, and would not
return; it was determined that the States were not bound to
make reparation, but to punish and deliver up the delinquents
if they could be taken.' (Grotius, 2 B. 17 C. 20 S.)
'' ^!Nor are kings bound to make reparation if their soldiers,
either by sea or land, shall do their subjects or allies any
damage contrary to their command; whicli is proved by the
testimonies of France and England. But if any one be bound
to make reparation for what his ministers or servants do with-
out his fault, this cause is not to be determined by the law of
nations, but by the civil law; not by that in general, but by
certain by-laws made against mariners and some others for
particular reasons.' (2 Clro. 17, 20.)
" Bynkershoek, and Lee, who has adopted all his principles
and authorities from Bynkershoek, are to the same point:
** ' In the case of the husbandmen and servants making iron
tmlawfully in a farm, it is its being done without the master's
knowledge which exempts liim from punishment, and, if it
had been done with his privity, he would suffer, because it was
NEUTRALITY. 3991
his duty, and he had the power to prevent it.' (Bynkershoek,
2 r. P. 1 B. 2 C; Lee on Captures, p. 187.)
*' Conformably to these principles, I find a case, cited from
the rolls of Parliament, in an old book entitled 'His Majesty's
Propriety and Dominion of the British Seas Asserted,' wherein
certain ambassadors from the Emperor of Flanders 'demand
that inquiry should be made and justice rendered about a
depredation by the Hubjects of England upon the English
seas, taking wines and other property belonging to certain
merchants of Flanders toward the ports of Cranden, within
the territory and jurisdiction of the King of England, alleging
that the said wines, etc., teere hr ought icithin the realm and
jurisdiction of the King^ and that it belonged to him to see justice
done in regard to that he is the Lord of the Sea,'' etc,
" The ground of demand here is that the injury was done
within the jurisdiction of the King, and that the property, for
the loss of which justice is required, was also brought within
his realm and jurisdiction.
" Indeed, nothing could be more incongruous with the prin-
ciples of natural justice, as well as with the law of nations,
than to render an individual or government under an obliga-
tion to restore that which was never in his power to restore,
or under such circumstances to compensate for not restoring
it, when the loss arose without the smallest fault imputable to
such government or individual.
" The ground of obligation on the United States to compen-
sate for loss or damage resulting from a capture by vessels
originally armed in their ports was the forbearance on their
part to use the means in their power to restore such cai)tured
proi)erty when brought within their juris<liction.
"The counsel for the claimant seemed to suppose that the
obligation to compensate arose from the circumstance of the
privateer being originally armed in the United States, but as
there is not the smallest evidence to induce a belief that, in
this or in any other case, the government ijermitted or in any
degree connived at such arming, or failed to use alKthe means
in their power to prevent such equipment, there is no ground
to support a charge on the fact that the armament originated
in their ports.
"The charge against France in the memorial before quoted
was founded ex])ressly on the fact that the acts of which Uis
Britannic Majesty complained icere done with the knowledge
and permission of the government and under the protection of
the royal officers.
"The same memorial states that ' it is well known that the
vigilance of the laws can not always prevent artful, illicit
traders, who appear under a thousand different forms, and
whose avidity for gains makes them brave every danger and
elude every precaution.' And in repelling certain accusations
of the French court it says : ' In the vast and extended theatre ^m
of a naval war the most active vigilance and the most steady ^r
3992 INTERNATIONAL ARBITRATIONS.
authority are unabU tx> discover or suppress every disorder, but
every time that the court of Versailles was able to establish the
truth of any real injuries that its subjects had sustained, with-
out the knowledge or approbation of His Majesty, the king
gave the most speedy and eft'ectual orders to stop an abase
which injured his own dignity as well as the interest of his
neighbours,' etc.
"Thus justly did Great Britain define the duties and re-
sponsibility ot a nation when endeavouring to criminate her
enemy and justify herself to the world. Where there is no
fault, no omission of duty, there can be nothing whereon to
support a charge of responsibility or justify a complaint.
" It is conceded by all that the express stipulation of the
article, supposing the letter to be part thereof, excludes this
case from our consideration.
" The law of nations, as stated by the most eminent writers,
clearly proves that in a case like the one submitted the party
has no claim on the neutral government for compensation, and
the law, as thus declared, is abundantly exemplified by differ-
ent writings and diplomatic papers produced by the claimant's
counsel.
" My former opinion, therefore, that the claimant is not en-
titled to compensation under this treaty is confirmed by the
fullest conviction that the claim, if considered distinct from
the letter of Mr. Jefferson to Mr. Hammond, could not derive
the least support from the principles of justice or from the
law or practice of nations.
" C, Gore.
" Grays Inn Square, ^l May 1798:'
It has been stated that while, by the letter
Caseof the "Fanny." of Jefferson to Hammond of September 5,
1793, the United States acknowledged an obli-
gation to restore vessels taken by cruisers armed within their
jurisdiction only where such vessels were captured and brought
in after the nth of the preceding June, it seems to have been
impliedly admitted in the cases of the brig Fanny and the ship
William^ which were captured and brou^rht in before that date,
that restitution would have been due if the vessels had been
taken in territorial waters. The cases of these two vessels came
before the commission under Article VII. and the claims were
dismissed. In the case of the William no oi)inion was delivered.
In the case of the Fanny an opinion was read by Mr. Trumbull,
in which he seems to have expressed the view that the date
in question was intended to apply to all claims, whether the
taking occurred inside or outside territorial waters. The
question before him was, however, that of a vessel captured
NEUTRALITY. 3993
on the hiffli seas by a cruiser originally armed in the United
States; and as to that question there is no doubt that his
opinion expressed the views of the commission. His opinion
was as follows:
,^^ "It appears from the protest and an affi-
^"""'^buU. davit of the master (which are the only evi-
dence before us relating to this capture) that
this was a British vessel huien with a cargo the property of
British subjects, and bound from Jamaica to Baltimore; that
she was captured on the 8th day of May 1793 at the distance
of about four or five miles from Cai)e Henry by the French
j)rivateer called the Sans Culottes, which was originally armed
in the port of Charleston in So. Carolina.
" From the afllidavit it appears that the Fanny was carried
into the port of Pliihidelphia, to which city the captain, Pile,
also went, *and that upon application to the courts of justice
he (the captain) obtained an order to attach the vessel, which
this deponent did as she lay at the quay.' It is further stated
in this affidavit that ^the deponent (Capt. Pile) attended in
the court at Philadelphia the trial of the ship William, of Glas-
gow, taken in nearly the same circumstances, when the judge
observed that he thought the courts of America had no right
to take cognizance of or in the least to interfere between the
belligerent powers.' It is further stated that a demand being
made the same day for the value or restitution of the said ves-
sels and cargoes, the President issued an order the same night
to seize the said vessels in the behalf and for the account
of the said United States, and which was accordingly done.'
The affidavit goes on to say that * upon this the deponent made
direct application to George Hammond, esqr., His Majesty's
minister plenipotentiary in Philadelphia, as to what steps he
had best pursue, who told him it was now a point between the
British and American governments; that it was useless for
the deponent to remain longer in America. Thereupon this
deponent quitted America in search of other employment.'
*' Thus far the testimony goes, but we have no information
before us from the complainant what, or whether any, further
steps were ever taken by him, or on his behalf, for the recov-
ery of this property, either before the Judicial or the executive
power of the United States.
" That i)artof the seventh article of the treaty between Great
Britain and tlte United States by which complaints of this
desfription are referred to the examination and decision of
this board is in the following words:
'* *And whereas certain merchants and others, His Majesty's
subjects, complain that, in the course of the war, they have
sustained loss and djimage by reason of the capture of their
vessels and merchandise, taken within the limits and juris-
diction of the States and brought into the ports of the same,
3994 INTERNATIONAL ARBITRATIONS.
or taken by vessels originally armed in ports of the said
States: It is agreed that in all snch cases where restitation
shall not have been made agreeably to the tenor of the letter
from Mr. Jefferson to Mr. Hammond, dated at Philadelphia.
Sept. 5th 1793, a copy of which is annexed to this treaty; the
complaints of the parties shall be and hereby are referred to
the Commissioners to be appointed by virtue of this article,
who are hereby authorized and required to proceed in the like
manner relative to these as to the other cases committed to
them.'
" Without discussing whether in strict grammatical construc-
tion, the letter therein referred to does or not form a part of the
ai*ticle, this at least is manifest, that the article and the letter
are inseparably connected, so that in every case which can be
brought before the board under the above-recited branch of
the article, the preliminary question must necessarily be not
whether restitution has already and absolutely been made by
the United States in the case, but whether restitution has been
made agreeably to th^ tenor of the letter. Hence a careful exam-
ination and clear understanding of the engagements contained
in that letter become necessary, it being manifest that in all
those cases where the stipulations of that letter shall appear
to the board from this i)reliininary enquiry to have been ful-
filled, we have nothing further to do, and that it is only in
cases where we shall find that restitution according fo the ttnor
of that letter has not been made that the board are to proceed
in like manner as in other cases committed to them.
"The members of the board ditt'er very materially in their
understanding of the tenor of this letter. I have heard with
attention what has been said on both sides, as well as what
was said in a former case by counsel of high reputation, and I
have endeavored to form my opinion not only by giving due
weight to all that I have so heard, but more especially by a
careful examination of the correspondence which passed at
the time, and on the subject of the captures complained of
between Mr. Jeft'erson, then the Americiiu Secretary of State,
and Mr. Hammond and Mr. (xenet, then ministers plenipoten-
tiary of the British and French nations. In cases where doubts
arise respecting the true intentions of a party expressed in a
written act, I know of no method more impartial or more cer-
tain of ascertaining such intention than a reference to the
cotemporary writings of the party, particuliirly when, as in the
present case, the writings in dispute forms a part of a connected
and important series relating to the same subject.
"The President of the United States, in a message dated the
5th Deer. 1793, laid before the Legislature of the Union copies
of the correspondence which had passed between the ofticers of
the American Government and the ministers of (ireat Britain
and France respecting captures said to have been illegally
made from the subjects of their respective nations. This mes-
sage and the papers with which it wns accompanied were, by
order of the House of llepresentatives, printed at Philadelphia
NEUTRALITY. 3995
the same year. What I have to offer to the board as the ground
of the opinion which 1 am to give in tlie present case will con-
sist principally of extracts from that publication.
*'The tirst paper which I beg leave to quote, as appearing to
me essential to a right understanding of the stipulations con-
tained in the letter of the 5th September, is a preceding letter
from Mr. Jefferson to Mr. Hammond, dated 5th June 1793. It
is as follows :
**'PHiLADELrHiA, June 5th, 1S93.
'• ' Sir : In the letter which I had the honour of writing you on the 15th
Miky, in answer to your several memorials of the 8th of that month, I men
tioned that tlio President reserved for farther consideration a part of the
one whicli related to tho equipment of two privateers in the port of
Charleston. Tlie part alluded to was that wherein you express your con-
tidenoe that tho Executive Government of the United States would pursue
meaHures for repressing such practices in future, and for restoring to their
rightful owners any captures which sucli privat>eers might hring into the
ports of the United States.
'* ' The President, after a full investigation of this suhject and the most
mature consideration, has charged rae to communicate to you that the Urst
part of this application is found to be just, and that elfectual measures are
taken for preventing repetitions of the act therein complained of; hut that
the latter part, desiring restitution of the prizes, is understood to be incon-
sistent with the rules which govern such cases, and would therefore be
un^justiHable toward the other party.
'' ^The principal agents in this transaction were French citizens; being
within the United States at the moment a war broke out between their
own and another ccmntry, they determine to go to its defence. They pur-
chase, arm, and equip a vessel with their own money, man it themselves,
receive a regular commission from their own nation, depart out of the
United States, and then commence hostilities by capturing a vessel. If,
under these circumstances, the coimnisnion of the captor was valid, the
property according to the laws of war was, by the capture, transferred to
them, and it would bo an aggression on their nation for the United States
to rescue it from them, whether on the high seas or on coming into their
ports. If the commission was not valid, and consequently tho property
not transferred by the laws of war to the captors, then the case would
have been cognizable in our courts of ailmiralty, and the owners might
have gone thither for redress, so that on neither supposition would the
Executive be justifiable in interposing.
*** With respect to the United States, the transaction can in no wise be
be imputed to them. It was in the first moment of the war, in one of their
most distant ports, before measures could be provided by the government
to meet all tho cases which such a state of things was to produce, impos-
sible to have been known, and thft'efore impossible to have been prevented
by that government.
" * The moment it was known, tho most energetic orders were sent to
every State and port in the Uniou to prevent a repetition of the accident.
On a suggestion that citizens of the United States had taken part in the
act, one who was designated was instantly committed to prison f(»r prose-
cution; one or two others have since been named and committed in like
manner, and should it ap)iear tliat there were still others, no measures will
be spared to bring them to justice. The President luvs even gone further,
he has required as a reparation of their breach of respect to tho United
States that the vessels so armed and e(iuipped shall depart from our ])orts.
*^'You will see, sir, in these proceedings of the President, une<iuivocal
proofs of the lino of strict right which he means to pursue. The measures
now mentioned are taken in Justiie to the one party; the ulterior measure
of seizing and restoring the prizes is declined injustice to the other, and
the evil thus early arrested will bo of very limited etl'ects, and perhaps
indeed soon disap2)ear altogether.'
i
3996 INTERNATIONAL ARBITRATIONS.
*'A letter was written on tbe same day to Mr. Genet, the
minister of France, on the subject of the vessels fitted out at
Oharleston, expressive of similar sentiments, and containing
an express demand tliat those vessels should immediately
depart from the ports of the United States.
" Both these letters clearly explain that the Government of
the United States did not hold itself bouud to restore prizes
made by the vessels in question on the high seas prior to
their date.
" But complaints of this nature continuing to be made, not-
withstanding the letter above mentioned to Mr. Genet, it be-
came necessary that the Government of the United States
should vindicate its rights in a more energetic manner; and
accordingly, on the 7th August, a circular letter was written to
the governors, etc., of the respective States, of which the fol-
lowing appears to have been the substance:
*** It hftvlng been decided by the PresideDt of the United States that no
armed vessel wliich has been or shall be originally Httedout in any port
of the United States as a cruiser or privateer by either of the parties at
war is to have aaylnm in any of the ports of the United States; in case
any vessel within the foregoing description should arrive in any port or
harbor within the limits ot your *' jurisdiction'' you are to cause her to I>e
ordered to d<'part immediately, and in case of her refusal you are to take
effectual nie<'isures to oblige her to depart. Force is not to be resorted to
until every proper elTort has been previously made to procure the early
departure without it. If any such vessel or vessels shall have sent or
brought, subset] uent to the 5tli instant^ or should hereafter send or bring
any prize or prizes into any port or harbor within your ** jurisdiction,
you will cause such prize or prizes to be immediately secured for the pur-
pose of being restored to the former owners.
***The following are the names of the privateers comprehended within
the meaning of this letter that have hitherto come to the knowledge of
the (iovernm. nt of the United States: CUoyen denei, Satia CalolteSf Fain-
queur de la Jiasiille, fitted out at Charleston, South (Carolina; Petit Dem-
oeratf rhiladelphia; Carmaynole, Delaware.'
'*On the same day the following letters were written by Mr.
Jefterson to the British and French ministers:
'''Philadelphia, ?th Autjt. t79S.
"'To Mr. Hammond, etc.
'• ' Sir: A constant expectation of carrying into full effect the declara-
tion of the President against permitting the armament of vessels within
the ports of the United States, to cruise on nations with which they are at
pence, hjvs hitherto prevented my giving you a final answer on the subject
of such vessels and their prizes. Measures to that etlect are still taking,
and particularly for excluding from all further asylum in our ports the ves-
selsso armed, and for the restoration of the prizes, the Lovchj LasSy the Prince
William Henry, and the Jane of Dublin, taken by them; and 1 am author-
ized in the meantime to assure you that, should the measures for restora-
tion fail in their effect, tlu^ President considers it as incumbent on the
Unit<'d States to make compensation for the vessels.
'"I have the honor to be, etc.
'•'To the MiNisTKK Plkxipotkntiakv of (;kkat Bkitain.'
*' ' Philadelphia, August 7th, 1793.
•"To the MiNisTKii Plempotentiarv of France:
" 'In a letter of .June 5th I had the honor to inl'oni you that the Presi-
dent, after reconsidering at your request the case of vessels armed within
NEUTRALITY. 3997
onr ports to commit hostilities on nations at peace with the United States,
had finally determined that it could not be admitted, and desired that all
those which had been so armed should depart from our ports. It beingp
understood afterward that these vessels either still remained in our ports
or had only left them to cruise on our coasts and return ag&in with their
prizes, and that another vessel, the Petit Democrat, had been since armed
at Philadelphia, it was desired in my letter of the 12th July that such
vessels, with their prizes, should be detained till a determination should be
had of what was to be done under these circumstances. In disregard,
however, of this desire the Little Democrat went out immediately on a
cruise.
'' 'I have it now in charse to inform you that the President considers
the United States as bound, pursuant to positive assurances given in con-
formity to the laws of neutrality, to effectuate the restoration of or to
make compensation for prizes which shall have been made of any of the
parties at war with France, subeequent to the 5th day of June lastj by priva-
teers fitted nut of our ports.
^* * That it is consequently expected that you will cause restitution to be
made of all prizes taken and brought into our ports eubaequent to the above-
mentioned day by such privateers, in defect of which the President considers
it as incumbent upon the United States to indemnify -the owners of those
prizeSf the indemnification to be reimbursed by the French nation.
** * That, besides taking efficacious measures to prevent the future fitting
out of privateers in the ports of the United States, they will not give
asylum therein to any which shall have been at any time so fitted out, and
will cause restitution to be made of all such prizes as shall be hereafter
brought within their ports by any of the said privateers.
" 'It would have been but proper respect to the authority of the country
had that been consulted before these armaments were undertaken. It
would have been satisfactory, however, if their sense of them, when
declared, had been duly acquiesced in. Reparation of the iivjury to which
the United States have been made so involuntarily instrumental is all
which now remains, and in this your compliance can not but be expected.'
" In both these letters we see a direct adherence on the part
of the Government of the United States to the rule adopted in
the letter of the 5th June, as well as the establishment of a
new one for all cases which might occur subsequent to the 7th
August; that is, to consider the privateers equipped in ports
of the United States without the knowledge of the government,
and anterior to any prohibition of such acts by it, as legal
cruisers until that date, June 5th, and as illegal from the date
of the 5th June, when their disapprobation was distinctly com-
municated to the minister of France. The letter written by
Mr. Jefferson to M. Genet on the subject of the three vessels
mentioned by name, and dated at Philadelphia, November
22nd, 1793, still goes on the same principle. It is as follows :
"'Philadelphia, Novr, 22ndy 1793.
** 'Sir: In a letter which I had the honor of writing to you on the 12th
July, I informod yon that the Prenident expected that the Jane of Dublin^
the Lovely Lass and the Prince JVilliam Henrys British vessels taken by the
armed vessel Citoyen Genet, shouhl not depart from onr ports until his
iiltiinate determination thereon shoald be made known. And in a letter
of the 7tli of August I gave you the further information th^t the President
considered the I nited States as bound, pursuant to positive assurances
given in ronformity to the laws of neutrality, to eflfectnate the restoration
of or to make compensation for prizes ma<le subsequent to the 5th day of
June by privateers fitted out in our i)orts; that conse(|uently he expected
you to cause restitution to be made of all prizes taken and brought into
our ports subsequent to the said 5th of June by such privateei's, in defect
/
3998 INTERNATIONAL ARBITRATIONS.
of which ho considered it as incumbent on the United States to indemnify
the owners of such prizes, the indemniticatiou to be reimbursed by the
French nation.
**'Thi8 detennination involved the bri^ »/««<' of Dublin, taken by the
armeil vessel Citoyen Genet on the 2Hh »July; the bri|; Lovely LasSf taken
by the nanie vessel on the 4th July, and the brijj^ Prince IVilliam Jlennff
taken by the same vessel on the 28th .lune. And I have it in charge to
en(|uire of you, sir, whether these three brigs have been given up, accord-
ing to the determination of the President, and if they have not, to repeat
the recjuisition, that they be delivered up to their former owners.
I am, etc/
^'They were not given up, and the Government of the United
States, 'rather than employ force for their restitution,' became
obligated to make compensation agreeably to the opinion of
the President expressed in Mr. Jefferson's letter of the 7th
August.
'• Before I advert to the letter of the 5th September, which is
by the treaty miule the rule of our judgment in these easels, I
shall quote one more letter of the American Secretary of State,
which still more clearly explains the sense of that government
respecting the rule adopted by that of the 5th JuniB, and at the
same time solves a <loubt which may sometimes occur to
the board on another very important jjoint. It is a letter to the
French minister, and in the following words:
" * German town, Xovember 8th j 1703,
*' * Sir : I have now to acknowledge Jind answer your letter of iSeptember
13th, wherein you devsire that we may deHno the extent of the line of terri-
torial protection on the coasts of the United »stateB, observing that
governments and jurisconsults have dirt'crent views on this subject.
** * It is certain that heretofore they have been much divided in opinion
aa to the distance from their seacoasts to which they might reasonably
claim a riglit of prohibiting the couimitnicntof hostilities. The greatest
distance to which any respectable assent among nations has been anytime
given has been tiui extent of the human sight, estimated at upwards of
twenty iiiiles; and the smallest distance, I believe, claimed by any nation
whatever, is the utmost range of a cannon ball, usually stated at one sea
league. Soin<' intermediate distances have also been insisted on, and that
of three sea leagues has some authority in its favor. The character of our
coast, remarkable in considerable p.irtsof it for admitting no vessel of size
to pass near the shores, would entith; us in reason to as broad a margin of
protecte<l navigation as m\y nation whatever. Not ]»ropoaing, however,
at this time, and without a respectful and friendly communication with
the powers interested in this navigatitm, to tix on a distance to which wo
may ultiuuitely insist on the riglit of i)rotection, the President gives
instructions to the ofH<ers acting under his authority to consider those
heretofore given them as restrained for tlu' jiresent to the distance^ of one
sea league or three geogra])hical mihs from the seashores. This dis-
tan<*e can admit of no opposition, as it is recognized by treaties between
some of the powers with whom wo art*. conn<'cted in commerce and naviga-
tion, and is as little or less than is claimed by any of them on their own
coasts. Future occasions will l»e taken to enter into explanations with
them as to the ulterior <»xtent to which we may reasonably carry our
jurisdiction. F<u' that of the rivers and ba>s of tlu^ United' States, the
laws of the several States are understood to have made provision, and they
are, moreover, Jis being landlocked, within th(^ body of the United States.
'* * Examining by this rule the case of the liritish brig Faunyy taken on
the 8th May last it appears from the eviden<^e that the capture was maile
four or five miles from the land, and consequently without the line pro-
visionally adopted by the President as before mentioned."
NEUTRALITY. 3999
" In the last paragraph of this letter, we find a direct appli-
cation of the principles of the letter of the 5th June to a
particular case, I i)re8ume the one now under consideration,
as I can find no mention in any part of the correspondence of
any other captured vessel call the Fanny than this commanded
by Captain Pile, whose protest (which is i)rinted among the
other papers of the correspondence) states the same date of cap-
ture and the same distance from the shore, here mentioned.
The legality of the privateer is evidently understood here
according to the principle of the letter of the 6th June, the
capture having taken place prior to that date, and the only
question appears to have been whether this happened within
the line of jurisdictional protection of the United States; from
the master's protest it was seen it did not, and therefore the
prize remained to the captors.
*' Thus far we can beat no loss for the sentiments of the
American Government, the foregoing letters clearly defining
the extent to which they held their nation to be responsible for
the captures which are of the description of the present com-
plaint. It remains to examine the letter of the 5th September,
which is by the treaty made our rule, and to determine whether
it contains any expression which can be understood as meant
to extend such responsibility. The letter itself having been
so long under our eyes I shall only copy here the part which
has a direct reference to the i>resent question.
'' The first paragraph, after statiiig that it is an answer to
one from Mr. Hammond dated August 30th, goes on to recapit-
ulate the subject of the letter to him, dated August 7th, which
contains the first promise of compensation for the three enum-
erated vessels.
^*The second states what were the obligations on this sub-
ject, which the United States had by treaty contracted with
other nations.
'^ The third states the determination of the President to ex-
tend the same rule to Great Britain, although the United States
were not bound l)y treaty to do so, and even to extend the rule
to captures made on the high seas and brought into ports of
the United States, if done by vessels which had been originally
armed within them.
''The fourth paragraph of the letter is in the following
words: *^ Having tor particular reasons forborne to use all
the means in our i)ower for the restitution of the three vessels
mentioned in my letter of August 7th, the President thought
it incumbent on the United States to make compensation for
them; and thongh nothing was said in that letter of other
vessels taken under like circumstances, and brought in after
the r)th June, and before the date of that letter, yet, when the
same forbearance had taken [)hice, it was and is his opinion
that compensation wouhl be e<iually due.'
^'The before-recited letter of the 7th August, in which com-
l)ensation had been promised for three vessels by name, con-
i
4000 INTERNATIONAL ARBITRATIONS.
tained uo express stipulation in respect to other cases of a
similar description wlucli might have occurred. I have reason
to believe that this omission will be found to have occasioned
Mr. Hammond's letter of the 30tli, in answer to which this
paragraph expressly extends the same principle, which had
induced the promise of compensation in these three cases to
all others of similar character which might have occurred be-
tween the 5th June and the 7th August. The promise is lim-
ited to cases occurring between those dates, and in this is to
be seen an unequivocal maintenance on the part of the United
States of the principle adopted and expressed in the letter of
the 5th June respecting captures made before that date. The
limitation of the engagement to cases occurring after that
date loaves no doubt of their having considered those which
had occured before as out of the present question, and as hay-
ing been detiuitively settled by the distinct determination re-
specting them, which had been expressed in the letter of that
date.
"The fifth paragraph of the letter of the 5th September
relates only to cases which might occur after the 7th August.
"The sixth states wiiat instructions had been given to the
olhcers of the United States, etc., on this subject.
"The seventh has no reference to the present question.
"The eighth is only a recapitulation of the preceding parts
of tlie letter.
"The ninth is of no consequence in the present question.
"The tenth respects losses by detention, waste, and spolia-
tion, and, as well as those of the fourth, its provisions are
limited to cases whicli had occurred or might occur of vessels
brought in between the 5th June and the 7th August. And
from this limitation the same inference is to be m^e respect-
ing cases wliich had occurred prior to the 5th June, as have
already been made under the fourth paragraph.
"Thus we see that this letter, which was written for the pur-
pose of exi)laining clearly to tlie I^ritish minister the inten-
tions of the American Government, respecting the captures in
question, instead of deviating from the principle already laid
down respecting captures nuule before the 5th June, does, by
limiting in two passages the stipulation of compensation to
cases occurring after that date, convey «as forcibly its sense of
not being obligated in cases preceding that date as could have
been done by an exju'ess clause of exception.
"All the <lo<'uments above quoted were of the date of 1793,
the latest of them November 22nd. They were all public, and
in the hands of the negotifitors of the present treaty; that
treaty which was signed in November 1794 makes the letter of
September 1793 the standard of the engagements of the United
States in cases of this nature, and directs us in all cases where
restitution shall not have been made, agreeably to the tenor
of that letter, to proceed as in the other cases committed to us.
The tenor of that letter appears to me to respect only cases
NEUTRALITY. 4001
occurring after the 5th June, and contains no stipulation
either of restitution or compensation in cases anterior to that
(late. The case of the Fanny ^ Pile, master, now under consid-
eration, is of anterior date, and therefore is, in my opinion, not
within the powers or duty of this board further to consider.
"Jno. Trumbull.
'* Grays Inn, October 16th^ 1798 J^
In the case of the Elizabeth, Iloss, master,
°beth! ^* ^^® ^^^^ ^^^^ ^^ ^^^ ^^^ ^^ vessels cap-
tured and brought in after August 7, 1793,
the United States were not bound to make compensation
unless it was shown that the government had been guilty of
some forbearance to ettect restitution, and that no claim could
arise where the complainant's loss was due to his own negli-
gence. In this case Mr. Trumbull, as fifth commissioner, ren-
dered the following opinion :
" This ship with her cargo being the property
Opinion ofMr.Trum- ^f British subjects was taken on the 14th day
of May 1794 on the high seas by two vessels,
alleged to have been illegally armed in some port or ports
of the United States, and commanded by two persons named
Ballard and Talbot, and said to have been citizens of the said
States. The ship was brought into the river of Savannah, in
Georgia, on the 19th day of May, and into the port of Savannah
on the 27th of the same month.
''The first step which appears from the testimony before us
to have been taken on the behalf of the owners for the recovery
of their property, was the entering a protest by the British
vice-consul, Mr. Wallace, and the mate of the ship, wherein it
is stated ^that John Wallace and John Steward put in their
claims as to the right of property of said ship and cargo, before
the vice consul of the liepublic of France, residing in the city
of Savannah, and filed their plea to the Jurisdiction of the said
court; that, however, the said ship and cargo was condemned.'
Then follow copies of the claim and plea above mentioned,
exhibited by John Wallace, esq., and John Steward to the
vice-consul of France on the 30th day of May. The next paper
of importance is a notarial protest made at the request of the
same parties against the sale of the ship and cargo, date<l the
()th day of June, on which day the same appear to have been
sold under the direction of the house of Hills, May & Wood
bridge, and the proceeds of the sale paid to them.
''On the 20th day of September following, a libel was filed
by the captain, Boss, on behalf of the owners of the ship and
cargo, before the district court of Georgia having by the laws
of the United States original jurisdiction in matters of prize,
in which, after stating the capture of the ship to have been
4002 INTERNATIONAL ARBITRATIONS.
illegal, and that the ship and cargo had been sold by Hills,
May & Wood bridge, the libellant prays ^that the usual war-
rants of arrest may issue out of the court to arrest the said
ship and cargo, the said Ballard & Talbot (captains of the
capturing vessels), llilLs, May «S: Woodbridge, as agents for
the captors, and by whose orders the ship and cargo had been
sold, and Joseph Miller the purchaser of the ship.' From the
snbsequent proceedings this appears to have been done as
respects the ship and the four persons last named. Ballard &
Talbot, it is presumed, had sailed before the date of the libel.
This is the first proceeding which appears to have been had on
behalf of the owners before any authority of the United States.
"The cause proceeded to trial; various depositions were
taken as well in court as before commissioners duly appointed,
tending to ascertain that the two capturing vessels had been
illegally armed in ports of the United States; that Ballard &
Talbot were American citizens, and that Hills, May & Wood-
bridge, in selling the Elizabeth and cargo, had acted as the
agents of the captors; and on the 20th day of December of the
same year, 1794, a decree was issued by the c^urt declaring
the capture of the ship Elizabeth and cargo to have been an
illegal spoliation, and ordering the ship and a trifling remnant
of her cargo still in the hands of Hills, May & Woodbridge,
to be restored to the libellant for the use of the owners.
'^The libel, as further respected Hills, May & Woodbridge
was dismissed, and Ballard «S: Talbot decreed to make restitu-
tion by paying the amount of all damages of what nature
soever sustained by the owners in consetiuence of the capture,
such damages to be ascertained by the clerk of the court,
assisted by three merchants. This estimate of damage was
made on the 0th and 10th of January following.
" From this decree both parties appealed to the circuit
court, before whom the cause was reheard^ and on the 5th day
of May 1795 the decree was confirmed inasmuch as regarded
the shij) and remnant of cargo, ordered to be restored, and the
said Hills, May «S: Woodbridge were ordered to pay the libel-
lant, for the use of the owners, the full value of the cargo,
amounting to $75,000, with costs.
^' The cause was next appealed by Hills, May & Woodbridge
to the Supreme Court of the United States, and after mature
examination judgment was there rendered on the 12th day of
August 1790, whereby the former decree was reversed in as
far as respc^cted Hills, May *.^^ Woodbridge; * and it was
further ordered, adjudged, and decreed that the said Hills,
May «S: Woodbridge should pay to the libellant, for the benefit
of the owners, the amount of tlie sales of the cargo which had
been received by them with interest to the date of judgment,
being $.'57,095.70 and costs.'
'' Two memorials are filed in this case, which state in general
terms that subjects of His Britannic ^Majesty * have sustainecl
considerable loss and damage by reason of such capture,' and
NEUTRALITY. 4003
that restitution has not been made ' agreeably to the tenor of
the letter of Mr. Jefterson to Mr. Hammond, dated at Phila-
delphia September 5th, 1793, a copy of which is annexed to
the above-mentioned treaty;' but both memorials are silent as
to the restitution of the ship and the remnant of cargo which
was uniformly decreed in all the American courts, and also as
to the recovery of all or any part of the sum decreed by the
tinal Judgment of the Supreme Court to be paid by the house
of Hills, May & Woodbridge.
'^ Such is the history of this case.
'* In order to be capable of rendering a right judgment
thereon, a careful examination of the obligations imposed on
the Government of America by the letter of Mr. Jefferson,
above alluded to, is essential; the preliminary question in this,
as in all other complaints of this description, being whether
those obligations have already been fulfilled. If they have, this
is not a case submitted to the further examination of this board
by the treaty; if they have not, then only are we to proceed in
the like manner relative to this as to the other cases committed
to us.
'' The variety of opinions which have been expressed as to
the extent of those obligations by men for whose judgment
I justly entertain the highest respect, and a due sense of the
liigh responsibility of a situation where even errors of judg-
ment may produce evils which admit of no remedy but one
which all good men must deprecate, are reasons sufficient to
urge me to give to this question the most mature and impartial
examination of which my mind is capable.
'' The first paragraph of the letter in question contains no
promise, but is a mere recapitulation of the subject of a former
one of August 7th.
'* The second paragraph is as follows : * We are bound by our
treaties with three of the belligerent nations by all the means
in our power to protect and defend their vessels and eflfects in
our ports and waters, or on the seas near our shores, and to
recover and restore the same to their right owners when taken
from them. If all the means in our power are used and fail
in their efl'ect, we are not bound by our treaties with those
nations to make compensation.'
" The third paragraph proceeds : ^ Though we have no simi-
lar treaty with Great Britain, it was the opinion of the Presi-
dent that we should use towards that nation the same rule,
and even to extend it to captures made on the high seas and
brought into our ports, if done by vessels which had been
armed within the same.'
**The fourth paragrai)h relates only to cases occurring be-
tween the 5tli June and the 7th August, and in all cases
between these dates, where a forbearance to use all the means
in their power to procure restitution had taken place, it is
announi^ed to be the opinion of the President that the United
States ought to make compensation.
5G27— vOl. 4 11)
i
4004 INTERNATIONAL ARBITRATIONS.
*' The fifth paragraph is in these words: 'As to prizes under
the same circumstances' (that is, within the line of jurisdic-
tional protection, or even on the high seasy if brought within
the ports of the United States and made by vessels armed
within those ports) ' and brought in after the date of that let-
ter' (7th August), 'the President determined that all the
means in our power should be used for their restitution. If
these fail, as we should not be bound by our treaties to make
compensation to the other powers in the analogous case, he did
not mean to give an opinion that it ought to be done to Great
Britiiin.' It has been suggested these latter words, ' he did
not mean, etc.,' bind the United States to make compensatiofi
in cases where the means used to procure restitution should
fail of their effect. I confess I know not on what principle
of grammar or of logic such a construction can be supported.
We must suppose a most uncommon and unaccountable degree
of complaisance on the part of the President of the United
States, if we believe that he intended by this expression to
convey thus gratuitously, and without even the demand of any
equivalent, to a nation between whom and the United States
there neither existed any treaty, nor even the most cordial
good understanding, an important privilege which had not
been granted to other nations by treaties formed under cir-
cumstances which would have justified liberal compliances on
the part of America. He could not intend this; on the con-
trary, if the expressions 'he did 7iot mean, &c.,' do not convey
to every mind, as I confess they do to mine, an absolute ex-
clusion of the idea of compensation in these cases, they at
least cannot be tortured to convey a promise of making it.
But if any doubt or uncertainty could be supposed in the
unconnected expression, its meaning is rendered unquestion-
able by the following sentence, which is ' But still, if any cases
shall arise subsequent to that date' (7th August), 'the cir-
cumstances of which shall place them on similar grounds with
those before it, the President would think compensation equally
incumbent on the United States.'
" This expression renders it manifest that compensation was
not meant to be promised generally in cases where all the means
in the power of the United States having been used should
have failed of their effect, but only in cases 'whose circum-
stances should place them on similar grounds with those before
the 7th August.'
"What the circumstances here alluded to were has been
asked, and I think is by no means ditticult to disc/over. In the
several circumstances of having been made within the line of
jurisdictional protection, or even on the high seas, and brought
within the ports of the United States by vessels armed within
these ports, the captures which had taken place before the 7th
August and those which might take place after that date re-
sembled each other; confessedly to these circumstances the
first branch of the paragraph applies, and where the means
NEUTRALITY. 4005
used to procure restitutiou in cases of this description, occur-
ring after the 7th August, should fail of their effect, there
compensation was not intended. The circumstance which had
produced the promise of compensation in cases occurring be-
fore the 7th August is expressly declared to have been 'a
forbearance to use all the means in their power to procure
restitution;' and it was doubtless a coincidence in this cir-
cumstance which was intended to bring future cases within the
same promise of compensation. The President had indeed
determined ' that all the means in our power should be used
for the restitution of vessels brought in after the 7th August,'
and ' if those should fail of their effect he did not mean to
promise compensation.' But as situations might again occur
in which he might believe it wise to depart from this determi-
nation, therefore that case is provided for by this declaration
that where that circumstance should again occur of a forbear-
ance, etc., there he would think compensation equally due.
This appears to me to be the true construction of the letter,
and renders it consistent and clear throughout. The letter of
the 7th August had promised compensation for three vessels
by name, * because the United States had forborne to use all
the means in their power to effect their restitution.' The fourth
paragraph of the letter of September 5th extends this promise
of compensation to all cases occurring before the 7th August,
where a similar forbearance had taken place; and the fifth now
under consideration provides for any possible deviation from
the determination therein announced of using all the means,
etc., for restitution by still further extending the promise of
compensation to any future case wherein prudential motives
might again dictate a forbearance. The principle of the letter
is thus simple and one throughout, and a forbearance to use
all the means in their power to procure restitution is in all cases
the basis of the promise of compensation.
" I shall now take the liberty of examining what that for-
bearance was which produced this obligation in the opinion of
the President in the case of the three enumerated vessels, and
the state papers so often quoted will give ample information.
On the 25th June the following letter had been written by the
Secretary of State to the minister of France:
** * Philadelphia, June 2oth, 179J.
** ' SiK : In the. absence of the President of the United States I have con-
sulted with the St'cretaries of the Treasury and of War on the subject of
the Hhi]) William f and generaUy of vessels suggested to have been taken
within the limits of the protection of the United States by the armed ves-
sels of your nation, concerning which I had the honour of a conversation
with you yesterday, and we are so well assured of the President's way of
thinking in these cases that we undertake ta say that it will be more agree-
able to him that such vessels should he detained under the orders of your-
self, or of the consuls of France, in the several i)ortfl, until the Government
of the United States shall he able to enqiiire into and decide upon the fact. If
this arrangement should be agreeable to you, and you will be pleased to
give the i)roper orders to the several consals of your nation, the governors
4006 INTERNATIONAL ARBITRATIONS.
of the several States will be immediately iustrnrtod to desire the coDsnl of
the port to detain vessels on whose beiialf such 8u<;};estiou8 shall bemada,
until the government shall decide uu their case. It may sometimes, per-
haps, happen that such vessels arc brought into ports where there is no
consul of your nation resident nor within a convenient distance; in that
case the governors would have to proceed to the act of detention them-
selves, at least until a consul could be called in.'
" The French minister, in bis answer of June 26th, declare<l
that this proposition was perfectly agreeable to him; and in
conformity to this arrangement |>rt?e* brought into porU of the
United States before the 7th August were not held in the custody
of any officer of the United States^ civil or militnry. but were
suffered to remain in the possession of the captors, under the
persuasion that they would be given up in all cases where the
Government of the United States should determine, after due
examination, that they had been illegally taken, and ought to
be restored to the original owners. Under this arrangement
the brigs Lovely Lass^ Prince William Henri) yS^nd Janeof l)ublin^
brought in between the 5th June and 7th August, had remained
in possession of the captors. The Government of the United
States having made the necessary examination, had demanded
from the French minister their restitution; but doubts of the
success of this demand (arising from his extraordinary conduct)
occasioned the letter of the 7th August to Mr. Hammond.
The demand was afterwards formally repeated in the letter to
Mr. Genet of November 22d, which 1 have had occasion to
quote in the case of the Fanny ^ Pile; the answer to which was
as follows:
*' ' Nkw York, ^Oth Novr., 179S,
" *To Mr. .Jefferson, Secretary of State, etc.
***SiR: It is not in my power to order tho French vessels which have
received letters of manpie in the ports of the United States in virtue of onr
treaties, in virtue of the most precise instructions to nie, to restore the
Erizes whicli thoy have been authorized to make on our enemies; but I
ave lonpf since prescribed to our consuls neither to oppose, nor to allow to
bo oi>posed, any resistance to the moral force of the Justice of the United
States, it" it thinks it niay interfere in atfairs relative to the prizes, or of
the government, if it persists in thesysteni agiiinst which 1 have incessantly
made the best founded representations.
** * Neither is it in my power to consent that the indenmities, which your
government ])ropose8 to have paid to the ]»roprietors of the said prizes,
should be placed to the account of France. 1st. Because no indemnity is
due, but when some damage has be(>n occasioned in the use of a right which
was not ])ossessed; whereas, our treaties and my instructions prove to me
that we were fully authorized to arm in your ports. 2nd. Hocause. accord-
ing to our constitution, as well as yours, the Executive has not the
arbitrary appropriation of tlie funds of the state; and the executive coun-
cil of France and their delegates <!ould not consent to a reimbursement
of tlie indemnities in question, but when the legislative body shall first
have renounced, under its responsibity to the peoi)le, the right which I
have been expressly instructed to maintain, and afterward have granted
the sums demanded by our enemies, aud which you have promised them
by your President.'
*<After this formal refusal of restitution by the minister of
France, no means remained bv which that restitution could be
effected but force. Force, for several prudential reasons, was
NEUTRALITY. 4007
not resorted to ; aad the United States, ^ having thus forborne to
use all the means in their power for the restitution of the three
vessels mentioned in tlie letter of the 7th August, the Presi-
dent tliought it incumbent on the United States £0 make com-
pensation for them.'
"The sixth and seventh paragraphs speak of the instruc-
tions given to the governors ot the several States to use all the
means in their power for restoring prizes of the foregoing de-
scription found within their ports, and of the means to be
taken for furnishing them with the necessary information.
"The eighth is in these words: 'Hence you will perceive,
sir, that the President contemplates restitution or compensa-
tion in the cases before the 7th August, and after that date
restitution, if it can be effected by any means in our power,
and that it will be important that you should substantiate the
fact trtiat such prizes are in our ports or waters.'
"The ninth recognizes as just a list of illicit privateers.
"The tenth proposes a mode of ascertaining the losses by
detention, waste, or spoliation sustained by vessels taken as be-
fore mentioned, between the dates of June 5th and August 7th.
" From this examination of the letter which is given to us
for a rule, it results that it was the opinion of the President,
therein ex[)ressed, that it was incumbent on the United States
to make restitution of, or compensation for, all such vessels
and property belonging to British subjects as should have
been, 1st, captured between the dates of June 5th and August
7th. within tlie line of jurisdictional protection of the United
States, or even on the higli seas, if, 2ndly, such captured ves-
sels and property were brought into the ports of the United
States, and, 3rdly, provided that, in cases of capture on the
high seas, this responsibility should be limited to captures
made by vessels armed within their ports; and,4thly, that the
obligation of compensation should extend only to captures
made before the 7th August, in which the United States had
confessedly forborne to use all the means in their power to
procure restitution ; and that, with respect to cases of captures
made underthelst, 2nd, and 3rd circumstances above enumer-
ated, but brought in after the 7th August, the President had
determined that all the means in the power of the United
States should be used for their restitution, and that he thought
that compensation would be equally incumbent on the United
States in such of these cases (if any such should at any future
time occur) where, the United States having decreed restitu-
tion, and tlie captors having opposed or refused to comply with
or submit to such decree, the United States should forbear to
carry the same into eftect by force.
" Such was the promise. In what manner was that promise
to be carried into eliectf It was not absolutely to restore by
tiie hand of power in all cases where complaint should be
made; if it had been such, there would have been no want of
complaints; and France herself would have had a better rea-
4008 INTERNATIONAL ARBITRATIONS.
8011 for making them tluin any other party. No; the promise
was conditioiial. We will restore in all those cases of com-
plaint where it shall be established by sufticient testimony
that the facts are true which form the basis of our promise —
tliat is, that the.property claimed belongs to British subjects;
that it was taken either within the line of jurisdictional pro-
tection, or, if on the high seas, then by some vessel illegally
armed in our ports, and that tlie property so taken has been
brought within our ports. By whom were these facts to be
proved? According to every principle of reason, justice, or
equity, it belongs to him who claims the benefit of a promise
to prove that he is the person in whose favour, or under the
circumstances in which the promise was intended to operate;
and since it is the party promising redress who must first be
convinced by testimony of the truth and justice of the com-
plaint, before the obligation of his promise can apply and
bind him to performance of the stipulated relief, he is of course
the proper person to decide under what forms and in what
manner the examination and proof of these facts is to be con-
ducted. Accordingly, every civilized nation has established
laws and judicial forms for doing right^for redressing wrongs,
and for restoring to the true owner property which may have
been unjustly wrested Irom him.
"And in no situation could a scrupulous and careful atten-
tion in the examination of facts, on which rested the validity
of a complaint and the duty of redressing it, be more essen-
tially reiiuisite than in this. The seventeenth article of the
treaty with France contained these words: *lt shall be lawful
for the ships of war of either party, and privateers, freely to
carry whithersoever they please the ships and goods taken from
their enemies, without being obliged to pay any duty to the
officers of the admiralty or any other Judges; nor shall such
prizes be arrested or seized when they come to and enter the
ports of either party; nor shall the searchers or other officers
of those places search the same, or make examination concern-
ing the lair/ulness of such prizes,'^ The extravagant conduct of
a minister of France had rendered it necessary that examina-
tion should be made by the government of America concern-
ing the lawfulness of the capture of certain vessels which he
insisted were prizes to French privateers; ])ut respect for the
sacred obligations of a treaty, as well as for the interests and
opinions of an ally, required that a proceeding which at first
sight appeared, and by the minister and his dependents would
of course be represented to his government, to l)e an infraction
of that treaty, should be conducted with the most scrupulous
delicacy; neither probability nor susjucion, however strong,
nor assertion however apparently well founded, could justily
the Government of the United States in taking any step in
the face of such a stipulation. Moral certainty of the illegal
circumstances of the cai)ture, established by testimony ui)on
oath, according to the most solemn forms of judicial proceed-
NEUTRALITY. 4009
iug, were indispensably necessary to that end; and France
might justly have accused America of favoring her enemies
had she proceeded in a less guarded manner.
^^The facts, then, on which a complaint of loss by illegal
capture was founded, were to be examined according to the
forms ordained by the Constitution and laws of the country,
and, if established, then the obligation to efiect restitution was
complete. Here I must again refer to the state papers, so
often quoted, for a history of the measures which were actually
taken by the American Government.
'^ The first expression of the sentiments of the government on
this subject is the following extract of a letter written by Mr.
Jefferson to Mr. Ternant, the French minister, prior to the
arrival of Mr. Genet, dated May 15th, 1793, in consequence of
certiiiu memorials presented by Mr. Hammond on the 8th:
' Our information is not perfect on the subject-matter of another
of these memorials, which states that a vessel had been fitted
out at Charleston, manned there, and partly, too, with citizens
of the United States, received a commission there to cruise
against nations at peace with us, and has taken and sent a
British vessel into this port. Without taking all these facts
for granted, we have not hesitated to express our highest dis-
approbation of the conduct of any of our citizens who may
personally engage in committing hostilities at sea against any
of the nations parties to the present war, to declare that if the
case has happened, or that should it happen, we will exert all
the means with which the laws and Constitution have armed U8 to
discover such offenders and bring them to condign punishment;
and that the like conduct shall be observed should the like enter-
prises be attempted against your nation, I am authorized to give
you the most unreserved assurance. Our friendship for all the
powers at war, our desire to pursue ourselves the path of peace
as the only way leading surely to prosperity, and our wish to
preserve the morals of our citizens from being vitiated by
courses of lawless plunder and murder are a security that our
proceedings in this respect will be with good faith, fervor, and
vigilance. The arming of men and vessels within our territory,
and without consent or consultation on our part, to wage war
on nations with which we are at peace, are acts which we will
not gratuitously impute to the public authority of France.
They are stated, indeed, with positiveness, in one of the memo-
rials, but our unwillingness to believe that the French nation
could be wanting in respect or friendship to us on any occasion
suspends our assent to and conclusions upon these statements till
further evidence,^
'' Soon after the date of this letter M. Genet arrived at Phil-
adelphia, and was received as minister of the republic of
France, and on the 27th of May he wrote to the American Sec-
retary of State a letter in which he avowed his having granted
commissions of his nation to several vessels equipped by his
advice at Charleston, and endeavored to vindicate and justify
/
4010 INTERNATIONAL ARBITRATIONS.
the measure. This letter was answered on the 5th June as
follows :
*' • Philadelphia, June 5th, 179S,
*' 'Sir: In my letter of the 15th May to Mr. Ternant, your predecessor,
after stating the answers which had been given to the seyeral memorials
of the British minister of May 8th, it was observed that a part remained
still unanswered of that which respecter! the Utting out armed vessels in
Charleston to cruise against nations with whom we are at peace.
'' ' In a conversation which I had afterwards the honor of holding with
you, I observed that one of these armed vessels, the Citoyen Genet, had
come into this port with a prize; that the President had thereupon taken
the case into further consideration, and after mature consultation and de-
liberation was of opinion that the arming and equipping vessels in the
ports of the United States to cruise against nations with whom they are
at peace was incompatible with the territorial sovereignty of the United
States ; that it made them instrumental to the annoyance of those nations,
and thereby tended to compromit their peace, and that he thought it nec-
essary as an evidence of ^ood faith to them, as well as a proper reparation to
the sovereignty of the country, that the armed vessels of this description
should depart from the ports of the United States.
•'* 'The letter of the 27th, with which you have honored me, has been
laid before the President, and that part of it which contains your observa-
tions on this subject has been particularly attended to; the respect due to
whatever comes from yon, friendHliip to the Frenchnation, and justice to all,
have induced him to reexamine the subject, and particularly to give to your
representations thereon the consideration they deservedly claim. After
fully weighing again, however, all the principles and circumstances of the
case, the result appears still to be that it is the right of every nation to
prohibit acts of sovereignty from being exercised by any other within itH
limits, and the duty of a neutral nation to prohibit such as would injure
one of the warring powers ; that the granting military commissions within
the United States by any other authority than their own is an infringe-
ment on their sovereignty, and particularly so when granted to their own
citizens to lead them to commit acts contrary to the duties they owe to
their own country; that the departure of vessels thus illegally equipped
from the ports of the United States will be but an acknowledgment of re-
spect analogous to the breach of it, while it is necessary on their part as
an evidence of their faithful neutrality. On these considerations, sir, the
President thinks that the United States owe it to themselves and to the
nations in their friendship to expect this act of reparation on the part of
vessels marked in their very equipment wMth offence to the laws of the
land, of which the law of nations makes an integral part.'
" One of the vessels armed at Charleston having arrived at
Philadelphia, and information having been legally made that
two of her officers were Americans by birth, they were arrested
and committed to prison for trial. The French minister
demanded their release as being citizens and officers of the
Republic of France 5 to this demand the following answer was
returned :
'* ' Philadeij»hia, June 6th, 179S.
^'^Sir; 1 have to acknowledge the receipt of your note on the subject
of Gideon Hentield, a citizen of the United iStates, engaged on board an
armed vessel in the service (»f France. It has been laid before the Presi-
dent, and referred to the Attorney-General of the United States for his
opinion on the matter of law, and I have now the honor of enclosing yon
a copy of that opinion. Mr. Hentii'ld appears to be im the cueiody of the
civil magistrate over whose proveidhtgH the flxecuHvc ban no control. The act
with which he is charged will be «'xan)ined by a Jury of his countrymen
in the presence of Judges of learning and integrity, and, if it is not con-
trary to the laws of tlie land, no doubt ne<'d l>e entertained that his case
NEUTRALITY. 4011
will issue accordingly. The forms of the law involve certain necessary
delays, of which, however, he will experience none but what are necessary.
" * P. S.— After writing the above I was honoured with your note on the
subject of Singletary, on which it is iii my power to say nothing more
than in that of Hentield.
*^ ' The Attorney-General of the United States has the honor of submit-
ting to the Secretary of State the following opinion on the case of Gideon
Ifenfield, as represented by the minister of France:
"'1st. It may well be doubted how far the minister of France has a
right to interfere. Hentield is a citizen of the United States, and it is
unusual at least that a foreign power should interfere in a question whether
as a citizen a man has been guilty of a crime. Nor can an authority be
derived from Flenfield being under the protection of the French Hepublic,
because, being still a citizen he is amenable to the laws which operate on
citizens, and the very act by which he is said to have been taken under
such protection is a violation of the sovereignty of the United States. If
he be innocent he will be safe in the hands of his country^men; if guilty,
the respect due by one nation to the decrees of another demands that they
be acquiesced in.
" ^2nd. But Henfield is punishable because treaties are the supreme law
of the laud, and by treaties with three of the powers at war with France
it is stipulated that there shall be peace between their subjects and the
citizens of the United States.
" '3rd. He is indictable at the common law because his conduct comes
within the description of disturbing the peace of the United States.
'* 'May 30th, 1793. E. Randolph.'
"In answer to new remonstrances of the minister of France,
a letter was written on the 17th June, of which the following
is an extract:
** 'The testimony of these and other writers on the law and usage of na-
tions, with your own just reflections on them, will satisfy you that the
United Stati's, in prohi])itiug all the belligerent powers from equipping,
arming, and manning vessels of war in our ports, have exercised a right
and a duty with justice and with great moderation. By our treaties with
Hcveral of the belligerent powers, which are a part of the laws of our
iand, we have established a state of peace with them, but, without ap-
pealing to treaties, we are at peace with them all by the laws of nature,
for by na tuna's law man is at peace with man till some aggression is com-
mitted which by the same law authorizes one to destroy another as his
enemy. For our citizens, then, to commit murders and depredations on the
members of nations at peace with us, or to combine to do it, appeared to
the Executive, and to those whom they consulted, as much ag<ainst the law
of the land as to munler or rob, or combine to murder or rob, its own
citizens, and as much to require punishment, if done within their limits
where they have territorial jurisdiction, or on the high seas where they
have a personal Jurisdiction — that is to say, one which reaches their own
citizens only, this being an appropriate part of each nation on an element
where all have a common jurisdiction. So say our laws, as we understand
them ourselves. To them the appeal is made, and whether we have con-
strued Ihem well or ill, the constitutional judges will decide. Till that
decision shall be obtained the Government of the United States must pur-
sue what they think right with firmness, as is their duty.
*^'0n the first attempt that was made, the President was desirous of
involving in the censures of the law as few as might be; such of the in-
dividuals only therefore as were citizens of the United States were singled
out for prosecution. Hut this second attempt, being after full knowledge
of what had been done in the first, and indicating a disposition to go on
in opposition to the lawsj they are to take their course against all persons
concerned^ whether citizens or aliens, the latter while within our juris-
diction, an<l enjoying the protection of the laws, being bound to obedience
to tliern, and to avoid disturbance of our peace within, or acts which
would commit it without, equally as our citizens are.'
4012 INTERNATIONAL ARBITRATIONS.
'* On the 23d June the following letter was written to M.
Genet: -
*'*8iK: I have the honor to inform you that in consequence of the
general orders given by the President, a privateer fitted out by English
subjects within the State of Georgia to cruise against the citizens of
France has been seized by the governor of Georfjiaf and such legal pro$ecutianM
are ordered as the case will justify. I beg you to be assured that the goyern-
ment will use the utmost \igilance to see that the laws which forbid these
enterprises are carried into execution.'
*' Ou the 25th June the letter already quoted was written,
proposing that vessels suggested to have been taken by priva-
teers whose illegality had been declared on the 5th June,
should remain in the custody of the minister or consuls of
France until the American Governrnetit should luive decided on
the fact. In tbe meantime several vessels had been brought
in as prizes, and proceedings had been instituted against the
captors in the district court of Pennsylvania, having original
jurisdiction in matters of prize. This court, considering the
obligation of the treaty with France before stated as para-
mount, decided that it had no jurisdiction in the case, in con-
sequence of which the following letter was written to M. Genet
on the 29th June:
''*Sir: The persons who reclaimed the ship William as taken within
the^limits of the protection of the United States, having thought proper
to carry their claims first irtto the courts of admiralty , there was no power in
this country tvhich could take the vessel out of the custody of that court till it
should decide itself whether it had Jurisdiction or not of the cause. Having
now decided that it had not Jurisdiction, the same complaint is lodged
with the Executive.
***I have the honor to inclose you the testimony whereon the complaint
is founded. Should this satisfy you that it is just, you will be so good as
to givo orders to the consul of France at this port to take the vessel into
his custody and deliver her to the owners; should it be overweighed in
your judgment by any contradic'toiy evidence which you have or may
acquire, 7 wilt ask a communicntion of that cridence. and that the consul
retain the vessel in his <'U8tody until the Executive of the United States shall
consider and decide finally on the subject.^
''After tliis decision of the inferior court, the question of fact
rested for examination with the lOxecutive. The foregoing let-
ter shews tbe mode of proceeding for the purpose of acquiring
tbe necessary information wliich they adopted, and this will be
further explained by a letter of November 16th, which will be
seen below; for, lest the dehiy of sending on complaints and
testimony from distant parts of the United States to tbe seat
of government sliould sometimes become prejudicial and vexa-
tious, the mode pointed out in the following letter was adopted :
'''Germantown, Xorr. 16th, 1793,
•*'ToM. Genet, etc.
** *Sir: As in cases where vessels are reclaimed by the subjects or citi-
zens of belligerent powers, as having been taken within the line of juris-
diction of the United States, it becomes necessary to ascertain that fact by
testimony taken according to the laws of thcUnited States, the governors of the
several States, to whom the application will bo ina/To in tlie first instance,
are desired immediately to notify thereof the attorneys of their respective
districts. The attorney is instructed thereupon to give notice to the prin-
NEUTRALITY. 4013
cipal agent of both partios, who may have oome in with the prize, and also
to the consuls of the nations interested, and to recommend to th^m to ap-
point, by mutual consent, arbiters to decide whether the captures were
made within the jurisdiction of the United States, as stated to you in
my letter of the 8th instant (that is within three miles from the shore),
according to whose award the governor may proceed to deliver the vessel
to the one or the other party. But, in case the consul or the parties shall
not a^ree to name arbiters, then the attorney, or some person substituted
by him, is to notify them of time and place, when and where he will be, in
order to lake the depositions of such witnesses as they may cause to come before
him, which depositions he is to transmit for the information and decision of the
President.
** ' It has been thought best to put this business into such a train as that
the examination of the facts may take place immediately, and before the
witnesses may have again departed from the United States, which would
too frequently happen, and especially in the distant States, if it should be
deferred until information is sent to the executive and a special order
awaited to take the depositions.
*' * I take the liberty of re<iuesting that you will be pleased to give snch
instructions to the consuls of your nation as may facilitate the object of
this regulation. 1 urge it with the more earnestness because as the attor-
neys of the districts are for the most part engaged in much business of
their own they will rarely bo able to attend more than one appointment,
(Did consequently the party who should fail, from negligence or other motiveSy
to produce his witnesses at the time and place appointed, misht lose the bene-
fit of their testimony altogether. This prompt procedure is the more to
be insisted on, as it will enable the President, by an immediate delivery of
the vessel and cargo to the party having title, to prevent the injuries
consequent on long delay.'
''The following extract of a letter written on the 9tli Sep-
tember to Mr. Genet is very clearly expressive of the opinion
of the executive branch of the American Government as to
the powers of the judicial department:
''^The intention of the letter of June 25th having been to permit snch
vessels to remain in the custody of the consuls, instead of that of a mili-
tary guard (which in the case of the ship William appeared to have been
disagreeable to you), the indulgence was of course to be understood as
going only to cases where the executive might take or keep possession
with a military guard, and not to interfere with the authority of the courts
of justice in any case wherein they should undertake to act. My letter of
June 29th, accordingly, in the same case of the ship* Fft/h'am, informed you
that no power in this country wonld take a vessel out of the custody of
the courts, and that it was only because they decided not to take cogni-
zance .of that case that it resulted to the executive to interfere in it.
** 'Consequently this alone put it in their power to leave the vessel in
the hands of the consul. The courts of justice exercise the sovereignty of this
country in Judiciary matters, are supreme in these, and liable neither to control
nor opposition from any other branch of the government.^
" In the meantime the conduct of this minister of France
having become so extravap^ant and his language so offensive
as to be no longer tolerable, the American Government deter-
mined to demand his recall, and a letter was written on the 16th
of August by the Secretary of State to the American minister
in France, detailing the reasons of this demand, and directing
him to lay the same before the Executive Council of France.
The following is an extract of that letter:
'^'It is an essential attribute of the jurisdiction of every country to
preserve peace, to punish acts in breach of it, and to restore property
taken by force within its limits. Accordingly, %hia right of protection
4014 INTERNATIONAL ARBITRATIONS.
within its waters, and to a reasonable diAtance on its coasts, has been ac-
knowledged by every nation, and denied to none, and if the property
seized be yet within their power, it is their right and duty to redress the
wrong themselves. How and by wh.Tt ors^an of the goyernment, whether
judieiary or executive, itshall be redressed, is not yet perfectly settled with
us. One of the 6ul)ordinate courts of admiralty has been of opinion, in
the first instance, in the ease of the ship William, that it does not belong
to the judiciary. Another, perhaps, may be of a contrary opinion. The
question is still Buh judicCj and an appeal to the court of last resort will
decide it linally. If finally the judiciary shall declare that it does not btv
long to the civil authority, it then results to the executive, charged with
the direction of the miUiary force of the. Union and the condnct of its
affairs with foreign nations. But this is a mere question of internal
arrangement between the different departments of the government, depend-
ing on the particular diction of the Constitution and laws; and it can in
no wise concern a foreign nation to which department these have dele-
gated it.*
" Various branches of tbe judiciary departmeut entertained
various opinions on this question. In Boston the district court
took cognizance so early as August 1793, and the French con-
sul at that port, having had the audacity to oppose the mar-
shal in the execution of their precept by removing the vessel
which he had orders to seize under the guns of a fiigate, and
placing a guard of troops of his nation on board her, the court
was supported in its authority, its proceedings were continued
and carried to full effect, and the exequatur of the consul was
withdrawn.
'' These various letters sufficiently explain the sentiments and
conduct of tiie Government from the commencement of these
complaints, and while it appears pretty clearly that they
regarded the question as of a nature within the cognizance of
the judiciary, yet we see no want of activity, energy, or good
faith to remedy by their own exertion the evils which might
arise from the opposite opinion being in some instances held
bv the courts.
"All uncertainty on this subject was, however, removed by
the decision of the Supreme Court of the United States at their
session in Philadelphia on the 18th of February 1794, which
was as follows:
" 'In the Supreme Court of the United States.
" < United States, ss :
"'Alexander S. Glass and others,^
appellants,
V8,
" 'The Sloop Betsey and Cargo, etc.,
and Pierre Arcade Johannene, ap-
pellee.
'* 'Appeal from the circuit court for the Maryland district.
'< ' At a Supreme Court of the (Tnited States held at Phila-
delphia, the same being the present seat of the National Gov-
ernment, on Saturday the 8th day of February, in the year of
>
J
NEUTRALITY. 4015
our Lord 1794, before the Honorable John Jay, Chief Justice,
and the Ilouorable William Gushing, James Wilson, John Blair,
and Wm. Patterson, esquires, Associate Justices of the said
court, came the parties, as well appellants as appellee, in
the above appeal by their respective advocates, and after full
hearing of all and singular the matters and things set forth
and contained in the record and minutes of the proceedings in
the said appeal, as well of the circuit court for the Maryland
district, as of the district court for the said district, and sol-
emn argument being had thereon by the said advocates, the
said Supreme Court, sitting and adjourning from day to day
until the 12th day of February, instant, took the same into
consideration and held the same under advisement until the
18th day of February aforesaid.
'* 'At which day the said Supreme Court of the United
States, being met, and the advocates aforesaid attending the
court, proceeded to the publication of their final sentence or
decree, which, being read and filed, is in the words following,
to wit:
'* *This court being decidedly of opinion that every district
court in the United States possesses all the powers of a court
of admiralty, whether considered as an instance or as a prize
court, and that the plea of the aforesaid appellee, Pierre
Arcade Johannene, to the jurisdiction of the district court of
Maryland is insutticieut; therefore, it is considered by the
Supreme Court aforesaid, and now finally decreed and adjudged
by the same, that the said plea be, and the same is hereby,
overruled and dismissed, and that the decree of the said dis-
trict court of Maryland founded thereon be, and the same is
hereby revoked, reversed, and annulled.
" 'And the Supreme Court being further clearly of opinion
that the district court of Maryland has jurisdiction competent
to enciuire and to decide whether in the present case restitu-
tion ought to be made to the claimants, or either of them, in
whole or in part, that is whether such restitution can be made
consistently with the law of nations, and the treaties and the
laws of the United States : Therefore it is ordered and adjudged
that the district court of Maryland do proceed to determine
upon the libel of the said Alexander S. Glass and others
agi'eeubly to law and right, the said plea to the jurisdiction of
the said court notwithstanding.
" 'And the said Supreme Court being further of Ofunion that
no foreign power can of right institute or erect any court of
judicature of any kind within the jurisdiction of the United
States, but such only as may be warranted by and be in pur-
suance of treaties, it is therefore decreed and adjudged that
the admiralty jurisdiction which has been exercised in the
United States by the consuls of France, not being warranted,
is not of right.
" ' It is further ordered by the said Supreme Court that this
cause be, and it is hereby, remanded to the district court for
4016 INTERNATIONAL ARBITRATIONS.
the Maryland district for a final decision, and that the several
parties to the same do each pay their own costs.'
"After this decree of the Supreme Court, it does not appear
that any difficulty occurred in any of the inferior courts on the
question of jurisdiction, but that justice was speedily and im-
partially administered is to be presumed, since it appears from
the following case that, even in Charleston (of which place we
have heard such a strange account from a gentleman who,
altho' he resided in the town, appears to have been very incor-
rectly informed), the administration of justice in cases of this
nature was not interrui)ted. This case is extracted from a let-
ter of Mr. Fauchet, the French minister, successor to Mr.
Genet, to the Secretary of State, dated Philadelphia, 13th Sep-
tember 1794 :
^'•The French privateer VAmi de la Pointe a Fetre, Captain WUliain
Talbot, commissioned at Gnadalonpe, seized near the iHland of Caba a
Dutch brigantiue, caUed De Vrouw Chnstiana Magdalena. This vessel had
been originally captured by a French armed vessel called V Amour de la
L%hert6f but having been met with and visited by VAmi de la Pointe a
Petrcj and the prize master who had been put on board by the first captor
not being able to produce any commission, the latter man nea her and brought
her to Charleston. Having arrived at that port, Captain Talbot was ar-
rested at the suit of the Dutch captain as a pirate, and security to the
amount of fourteen thousand dollars was demanded from him for his liberty.
Proceedings were immediately instituted against tlie captors in the court
of admiralty, and, notwitlistanding the representations of the French con-
sul, notwithstanding documents furnished in favor of Talbot and which,
as you will soon see, were not of a nature to bo refused, the prize was ad-
judged illegal and restored to the claimants. I could have wished, sir, to have
it in my power to send you a formal copy of the decree pronounced by the
court; but, if the enclosed extract from the Gazette, of Charleston, may
be deemed suflicient information, it appears that the senttmce was groanded
on the illegal equipment of the capturing vessels, on Captain Talbot's
being a citizen of tlie United States, and his vessel armed at Charleston.
*** CiiARLKHTON, Saturday, August 9th^ 1794.
" * Wednesday, in the court of admiralty for this district, the jad^e pro-
nounced his decree in the long-contestid cause of the Dutch brigantme the
I'rouw Chrintiana Magdalena, ca])turod and brought into this port by the
Captains Hallard and Talbot.
*' * The libel was on behalf of the captain and owners of the said brig-
antine, claiming restitution under the ir)th and 19th articles of the treaty
with the ruited Netherlands. A plea was entered to the jurisdiction of
the court, under the 17th article of the treaty with France and the 6th
se<'tion of the act of Congress of the 5th June last, entitled " an additional
act to the act for thexiunishment of crimes and otfenses against the United
States.-' A claim was interpo8e<l on behalf of Ca|)taiu William Talbot, an
a French citizen, acting under a commission from the governor of Guada-
loupe, .'ind as having taken this vessel out of the possession of Captain
Ballard, the original captor, his ]»rize imister producing no commission.
*^*Tho judge, on considering the arguments in support of the plea to
the jurisdiction, overruled the same as irrelevant.
" ^ 1st. Because the 17th article of the treaty with Franco contemplates
only French vessels of war or privateers legally appointed.
•* ' 2nd. Because the <)th section of the act of Congress of the 5th. June
last does not lessen the jurisdiction of the district c(Mirt« in any case of
which they had ])revious <*ognizance; and the decree; of the Supreme
Court of the United States, in tlie cast* of Glass and others, against the
sloop Jieisey, etc., having declared that every district court of the United
States possesses all the power of an admiralty court, whether considered
NEUTRALITY. 4017
as an instance or a prize court, this cause was therefore cognizable therein
by the law of nations and the constitution of the court.
** 'The judge being of opinion that Captain Ballard had acted without
any commission authorizing him to^ cruise or arm for war. and had not
even the pretense of being a French'citizen ; that Captain Talbot, having
armed his yessel (then an American bottom) in an American port, pro-
ceeded thence to Guadaloupe for the express purpose, as appearetl in evi-
dence, of changing the property, applying for a French commission,
obtaining the same within two days after the sale of the vessel, and under
color of such commission having captured the said brigantine Vrouw
Christiana Magdalena^ which acts were decreed contrary to the 19th article
of the treaty with the United Netherlands, and in no way derogatory to
the 17th article of the treaty with France, as not being within the pur-
view or intention thereof; restitution of the vessel and cargo was there-
fore decreed.'
*^The iutroduction of so many quotations has drawn this
examination to a length which I wished to avoid; but, as the
question is important, I was unwilling to omit any passage
which appeared useful to a clear and perfect understanding
of it.
"There is no doubt that the ElizcLbeih and her cargo were
the property of British subjects; that she was captured by
privateers* illegally armed in ports of the United States;' nor
that she was brought into a port of the same. She is there-
fore clearly within the purview of the letter of the 5th Sep-
tember; but, having been captured after the 7th of August
1793, she (ian only claim the benetit stipulated in favor of such
cases.
"It appears from the first part of this enquiry that in prom-
ising to use all the means in their power for the restitution of
vessels captured after that date the United States did not
undertake to make compensation in case those means should fail
of their effect.
"It appears that by the expression *all the me-ans in their
power,' they meant, first, those means which the Constitution
and laws had provided for the redress of wrong and force,
whenever it should be rendered necessary by any act of oppo-
sition to the ordinary course of justice. That although doubts,
entertained by a part of the judicial establishment of its juris-
diction in these cases, had phiced them for a time under the
immediate eye of the executive power, yet to the complainant
this produced no important change, since the same examina-
tion and proof of facts was recynired to establish the justice of
his complaint and to guide the decision of the President, as
would have been required before the judges. That after the
18th February 1794, the decision of the Supreme Court had
removed those doubts which had for a time influenced the con-
duct of some of the inferior courts. And it does not ai)pear
that after that decision there was any delay on the part of the
inferior courts in rendering, nor any opposition on the part
of the captors to the execution of, their process or decrees,
insomuch that there existed no occasion thereafter to fulfill
the ultimatum of the promise by exerting force to compel
restitution.
4018 INTERNATION^VL ARBITRATIONS.
*'lt appears from the case of the Vrouw Christiaiu% Mag-
dalena, decided at Obarleston on the 6th Aagast 1794, aud
which is spoken of as a long contested case, that the means
thus provided by the constitution and the laws were effectual
to procure relief in cases of this description, when properly
pursued.
"Although the Elizabeth was brought within the jurisdic-
tion of the United States so early as the 19th May 1794, at
which time the decision of the Sui)reme Court, dated February
18th of the same year, and the course proper thereupon to be
pursued in these cases must have been long known in Georgia,
yet it does not appear that any measures were taken for pur-
suing that course until the date of the libel filed by the
captain, Koss, on the 20th September following. It does not
appear that after the filing of the libel on the 20th September
there was any greater delay than usually attends the proceed-
ings of European courts of admiralty, the first decree having
been rendered on the 20th December 1794, the first appeal
having been heard and judgment rendered on the 6th May
1795, and the final decision before the Supreme Court having
taken place on the 12th August 1796.
" It appears that all these decrees ordered not only restitu-
turn of all that part of the property which actually came, or
indeed could have come, within the custody of the court (and
of this alone as courts of admiralty, acting according to the
European practice in rem, they might strictly be held to
have cognizance, and the restitution of this, without much
violence of construction, might be considered as ftilfilling the
promise contained in the letter of the 5th September), but all
these decrees went much further, and ordered either the cap-
tors or their agents to make compensation either in the full
value of the property captured, or in the amount of sales which
had come into their hands.
"And it further ai)pears from the case of the Vrouw Chris-
tiana Maijdalena that it was in the practice of the courts to
require bail from the captor in cases of this kind, thereby giv-
ing to the party complainant all the certainty of the ultimate
satisfaction of his demand, when established, that is, I believe,
customary among nations the most famed for the coiTCct ad-
ministration of Justice.
" Under these circumstances I confess I do not see how the
memorialists can have sufl'ered loss in this case, unless by that
negligence and delay which, according to the treaty, xjrecludes
them from any remedy before this board.
"There was manifest negligence and delay in not applying
to the authority of the United States before the 20th Septem-
ber, which gave time from the 19th May preceding for the cap-
tors to dispose of the property, and thus evade the powers of
a court whose right it was to act in rem^ and also to withdraw
themselves from the reach of the court.
" There must have been negligence if bail was not demanded
from the agents of the captors.
NEUTRALITY. 4019
<<And there must have been negligence if the final decision
of the Sapreme Court has not been carried into eft'ect in the
restitution of the ship and a part of the cargo.
^^ The (Jnited States, in using the means they did for the
restitution of the property in question, appear to me to have
done in this case all that they would or could have done if the
complainant had been one of their own citizens; all that the
law or practice of nations require to be done in favor of a
foreigner; all that they were bound to do in behalf ot the sub-
jects of allied nations; and all that by the letter of 5th Sep-
tember 1793 they had engaged to do in favor of British
subjects. They are not bound by the tenor of that letter to
make compensation in cases of this nature, where those means
should fail of their effect. And, therefore, I am clearly of
opinion that the two memorials which have been filed in this
case ought to be dismissed.
"Jno. Trumbull.
"London, November- 5thj 1798.^^
While the foregoing opinions on claims that
Z\' v^i *^**' J* ^ere rejected disclose certain cardinal rules of
Bntiali ClaimantB. ,..^, ... ,,
decision, further light may be thrown on the
subject by an examination of the claims that were allowed.
As to these claims the American commissioners made no report,
beyond the bare communication to their government from time
to time, ill the course of a letter, of the fact that a certain
award, or certain awards, had been made.
Prior to the suspension of the proceedings of the board in
July 1799 five awards were made in favor of British claimants.
These awards were made in the cases of the Prince William
Henry ^ the Jane of Dublin^ and the Lovely LasSj the vessels in
respect of which liability was expressly acknowledged, on the
ground that though they were captured and brought in after
June 5, 1793, by privateers originally armed in the United
States, the government had forborne to use all the means in
its i)0wer to restore them. The awards in question were as
follows :
Pnnce William Henry $1,843.91
r 3, 280. 00
Jane of Dublin ? 3, 549 00
( 3, 036. 93
fAtvely Lass 21,884.80
Totttl 33,594.64
After the reassembling of the board in February 1802 seven
awards were made in favor of British claimants. The first of
5627— VOL. 4 60
4020 INTERNATIONAL ARBITRATIONS.
these was reported by Messrs. Gore aud Piukney to Mr.
MadisoD in a letter of Jaly 15, 1803, to which they said that
they subjoined an abstract of the only award made against
the United States since February 1802. Unfortunately, this
abstract has disappeared. Abstracts of the other awards
were communicated from time to time, and the list may be
stated as follows :
Unknown $12,474.93
Grenada Packetf Weuiyss, master 18, 498. 09
Roehamptofif Aitkin, master 14, 965. 33
(41,695,56
Friendshipf Strunnock, master \\%, Tl^ 70
Pilgrimf Walstrum, master 1, 448. 88
Providence^ Robertson, master 7, 072. 01
Total 109,833.50
The ship Grenada Packet^ of London, was
Packet/'
The "Grenada ^.^ptur^^ ^,j ^he high seas on April 16, 1794,
and brought into Savannah, by the French
privateer L^Ami de la Pointe a Pitre^ which was fitted out and
armed in the United States. Soon after her arrival at Savan-
nah, the Grenada Packet was burned, it seems accidentally.^
The ship Roehampton, of London, was cap-
The '^Boehampton." tured on the high seas in September 1793,
and brought into Baltimore by the French
privateer Industry. It appears that on September 6, 1793,
Mr. Hammond wrote to Mr. Jefferson that he had received
information that a privateer, "named the Industry y has, within
the last five or six weeks, been armed, manned, and equip-
ped in the port of Baltimore." On the 7th of November
Hammond wrote again, in relation to the capture of the Roe-
hampton. He stated that the Industry was one of two vessels
which, in consequence of a positive requisition from the Secre-
tary of War, a member of the executive council of Maryland,
named Kelty, was in the preceding August appointed to
examine, in order to ascertain whether they had been arming
for hostile purposes. Though the information obtained by
Kelty on his arrival in Baltimore was deemed sufficient to
warrant the immediate seizure and dismantling of the Industryj
he was on the following day induced to restore her, and to
* British Counter Case and Papers, Geneva Arbitration, American reprint
614, 615.
NEUTRALITY. 4021
allow her to be refitted, and to proceed to sea, with a complete
I)rivateering equipment. Wlieu, not long afterward, the Eoe-
hampton was sent in as a prize, the British consul at Balti-
more, having obtained unquestionable evidence that the
Industry had undergone a material alteration in form and
received additions to her force in that port, demanded of the
governor of Maryland that the ship be released. The gov-
ernor refused to interfere, on the ground that the evidence
should have been produced when the owner of the Industry
was present to controvert it; that it was illegally taken, and
that, even if it were admitted, it did not authorize him to
interpose. An appeal of the owners of the Roehampton to the
district court of the United States was equally unsuccessful,
the judge holding that the case was not within his jurisdiction.
The Roehampton, after a second refusal of the governor to
interfere, was then sold by an agent of the captor, and was pur-
chased by a citizen of the United States. By the depositions
obtained by the British consul, it appeared that when the
Industry first entered the port of Baltimore she carried from
four to six guns, that during her stay her decks were altered
and strengthened, new port holes cut, and new gun carriages
made, and that when she departed she had four 6-pounders,
eight 4-pounder8, and two howitzers, completely mounted,
besides a lage quantity of newly purchased ammunition.
Jefterson, replying to Hammond on the 14th of November
1793, said that " restitution of prizes" had *' been made by the
Executive of the United States only in the two cases : first, of
capture within their jurisdiction by armed vessels originally
constituted such without the limits of the United States; or
second, of capture, either within or without their jurisdiction,
by armed vessels originally constituted such within the limits
of the United States, which last have been called proscribed
vessels." As to ** military equipments " made in the ports of
the United States, they ** were ordered to be suppressed when
detected, and the vessel reduced to her original condition,''
even though she was a vessel of war on her arr^yal; but if the
vessel escaped detection altogether, departed, and made prizes,
" the Executive," declared Jefferson, " has not undertaken to
restore the prizes." In connection with this declaration, he
observed that with due care, especially since the issuance of
regulations by the Secretary of the Treasury in the preceding
August, it could scarcely hapi)en that military equipments of
i
4022 INTERNATIONAL ARBITRATIONS.
any magnitude should escape discovery. Vessels that were
small might, perhaps, sometimes escape, bat to decide that
the ^^ smallest circumstance" of military equipment in the
ports of the United States should invalidate a vessel's prizes
'through all times" would be '^a measure of incalculable
consequence."
Having thus argued that no demand for restitution would
lie on the ground of " a mere military alteration or an aug-
mentation of force," Jefi'erson said that he would consider
Hammond's letter " only as a comi)laint that the orders of thp
President prohibiting these have not had their efifect in the
case of the Industry^ and inquire whether, if this be so, it has
happened either from neglect or connivance in those charged
with the execution of these orders."
Proceeding, then, to review the evidence, Jefferson said that
when, in the preceding August, an investigation was made at
the request of the Secretary of War, neither Captain Kilty
{sic) nor the British consul were able to find any vessels ans-
wering the description of those that were the objects of their
inquiry. At length, however, Captain Kilty, observing a
schooner which appeared to have been making some equip-
ments for a cruise, to have added to her guns and made some
alteration in her waist, thought these circumstances merited
examination, thougli the regulations issued by the Secretary
of the Treasury had not then appeared. He therefore had the
vessel seized. On examination "he found that she was the
schooner Industry^ Captain Carven, from St. Domingo, and
that she had been an armed vessel for three years before coming
here, and as late as Ai)ril last had mounted 16 guns; that she
now mounted only 12; and he could not learn that she had
procured any of these or done anything else essential to her as
a privateer at Baltimore. He therefore discharged her." After
the arrival of the Hoehainpfon, new witnesses had come forward
to prove that the Industry had made some military equipments
at Baltimore before her cruise. Ha<l this testimony been ob-
tained before her departure it would have had the effect of
causing her to be detained till she should have reduced herself
to the condition in which she was at the time of her arrival.
Nevertheless, said Jefferson, " the governor's refusal to restore
the prize, was x)erfectly })roper: for, as has been before ob-
served, restitution has never been made by the Executive, nor
can be made, on a mere clandestine alteration or augmentation
NEUTRALITY. 4023
of military e(|uipinent8, which was all that the new testimony
tended to prove." The President had, however, ordered a
new inquiry to be made; and if the result should be that the
Industry really did make any military equipments in the
United States, instructions would be given to reduce her to
her original condition, should she come again within the juris-
diction. In conclusion, Jef!erson said:
" On the whole, sir, I hope you will perceive that, on the
first intimation, through their own channels, and without
waiting for information on your part that a vessel was making
military equipments at Baltimore, the Executive took the best
measures for inquiring into the fact, in order to prevent or sup-
press such equipments; that an officer of high respectability
was charged with the inquiry; that he made it with great dili-
gence himself, and engaged similar inquiries on the part of your
vice-consul; that neither of them could find that this privateer
ha<l made such equipments, or, of course, that there was any
ground for reducing or detaining her; that at the date of your
letter of September 6 <the first intimation received from you),
the privateer was departed, had taken her prize, and that prize
was arriving in port; that the new evidence taken after the
arrival can produce no other eflFect than the institution of new
inquiry, and a reduction of the force of the privateer, should
she appear to have made any military alterations or augmenta-
tion, on her return into our ports; and that in no part of this
procedure is there the smallest ground for imputing either
negligence or connivance to any of the officers who have acted
in it."
On the22d of November 1793 Hammond, acknowledging the
receipt of Jefferson's letter, said that, as it announced the
"fixed determination" of the government "not to restore"
the Koehampton, he deemed it unnecessary to enter into a
minute examination of the reasoning or the facts by which
that determination was justified. Mr. Hammond added:
"1 can not, however, avoid remarking that, although your
position may be well founded, 'that it would be a measure of
incalculable consequence to decide that the smallest circum-
stance of military eciuipment to a vessel in your ports should
invalidate her prizes through all time,' it may also be a meas-
ure of incalculable mischief to the general commerce of friendly
powers (excei)ting that of France) trading with the United
States, if the largest* circumstances' of military equipment
superadded to Frenith i)rivateers in* your ports, provided they
elude the vigiliince of the officers appointed to watch over
proceedings of this nature, shall not be considered by this gov-
ernment as sufficient to invalidate prizes brought into its ports
by vessels under this predicament. In the present case the
4024 INTERNATIONAL ARBITRATIONS.
facta are that tlie schooner Indu^try^ accordiog to tbe depo-
sition of Benjamin Baker, of Baltimore, at whose wharf and
shipyard she lay during her additional equipment, had no
more than four or six cannon mounted when she was broaght
to his wharf; that when she left it she had four G-ponnders,
eight 4-pounders, and two howitzers completely mounted; and
that from Mr. Kelty's report it appears that he himself was
convinced that she had added to the number of her guns, and
had made alterations of a warlike nature, but as he could not
learn whence these additional cannon had been procured, he
did not deem himself justitied in refusing his assent to the
authenticity of the documents produced by the captain of the
vessel, or in detaining her any longer.
"The privateer Industry was therefore allowed to depart
from Baltimore under an augmentation of force more than
double to that of her original appearance in that port, and to
which augmentation I have reason to believe her subsequent
capture of the ship Eoehampton is in a great measure, if not
entirely, to be imputed."^
Though Jefferson in his letter of the 14th of November
refers to the clandestine manner in which the additional fitting
out and arming of the InduHtry were effected, it is obvious that
he did so merely for the purpose of showing that the authori-
ties of the United States were not guilty of any connivance or
neglect, and not for the purpose of maintaining that a priva-
teer that had illegally augmented her force might, merely by
getting to sea before her misconduct was discovered, secure
the i)rivilege of bringing (or sending) in and disposing of her
prizes. The ground he assumed was that the "mere military
alteration or an augmentation of force," as distinguished from
an original or entire fitting out and arming, did not afford a
basis for restitution.
Before the case of the lioehampion came before the commis-
sion under Article VII, several vessels captured by French
cruisers whose force, like that of the Indtisfry, was only aug-
mented in the United States, were restored by the courts,
after tlie i)assage of the act of June 5, 1794.^
The shi]) Frirndship, Strannock, master, of
The " Friendflhip." London, while on a voyage from Jamaica to
Quebec, was caj)tured on June 26, 1794, and
brought into Charleston by the French ]:)rivateer Montague.
' Jintish Couiiler Case and J'apt'rx, Geneva Arliitratioii. AiinTicaii reprint,
544, 548. 555, 559.
- Ceyer v. Michel, a Dallas, L'85 ; Moodic v. Jiettt/ Calhcari, IJoe, 2H2, 3 Dal-
la«, 288, iioto ; Jiritinh Consul v. Schooner Sancyy Bee, 73.
NEUTRALITY. 4025
This privateer was Originally an American schooner, called
the Robert^ which was condemned as French property at
Nassau, New Providence, July 26, 1793. Subsequently she
returned to. Charleston, where, as a French vessel, slie was
permitted to fit out. She left Charleston armed and manned
March 4, 1794, and, sailing to the French West Indies,
received a commission, which was registered at Point-^-Pitre
on the 25th of March. On the 2Gth of April she returned to
Charleston as a French privateer, and sailing thence captured
the Friendship, The Friendnhip, when brought in, was libelled
for restitution. The court sustained a plea to the jurisdiction,
and on August 18, 1794, dismissed the libel with costs, holding
that, as tlie commission was granted in a French port. Article
XVII. of the treaty of amity and commerce with France of
1778 might be invoked against the claim of restitution." On
appeal, the circuit court of the United States reversed this
judgment and remanded the cause to the district court for trial
on the merits. Judge Wilson, who heard and determined the
api)eal, holding that the jurisdiction of the court below was
ample, and that the claimant ought to have answered and
pleaded the treaty in bar to the action, leaving it to the court
to decide how far the treaty was available for that purpose,
liestitution, however, was not obtained. It appears that, be-
sides the fact that the Montagne obtained her commission in
the French West Indies, it was also urgetl in behalf of the
captor that her arming at Charleston did not exceed what was
requisite or proper for the protection of a vessel engaged in
commerce, and that such arming was not, before the enact-
ment of the neutrality statute of June 5, 1794, unlawful.
The brig Pilgrim^ of Bristol, England, was
The "Pilgrim." captured October 6, 1793, while on a voyage
from Nanticoke, Maryland, to Barbados, by
the privateer Sans Culottes, one of the so-called proscribed
vessels. Moreover, the capture was made at the distance
of two and one-half miles from the shore, and consequently
within the jurisdiction of the United States. The brig was
sent into Baltimore, where she was condemned by the French
consul and sold to an American citizen within a month of
the date of her capture. Five months later, on the 5th
of April 1794, the British minister was informed that the
'^ atannick v. JShip Friendthip, Bee, 40.
4026 INTERNATIONAL ARBITRATIONS.
President bad instructed the Secretary of War to caase the
brig to be restored. These instructions appear to have been
given without attention to the circumstance of the sale, and a
indicial proceedinia: was subsequently instituted by the govern-
ment with a view to effect restitution by that means. June 21,
1794, Edmund Eandolph, who was then Secretary of State, in-
formed the British minister that, if the prosecution should not
succeed, the government would " consider the Pilgrim as stand-
ing upon an equal title to compensation with any of the ves-
sels illegally captured." It appears that the brig was sabse-
queutly restored, but in a bad condition.* The commission's
award of $1,448.88, in favor of the owners of the vessel and
cargo, seems to have been for damages, which probably were
awarded in accordance with the following principle, stated in
a letter of Jelferson to Hammond of December 26, 1793:
''I observed to you, in the letter of September 5th, that we
were bound by treaties with three of the belligerent powers
to protect their vessels on our coasts and waters by all means
in our power; that if these means were sincerely usexi in any
case, and should fail in their eftect, we should not be bound to
make compensation to those nations. Though these means be
effectual and restitution of the vessel be made, yet if any un-
necessary delay or other default in using them should have
been the cause of a considerable degree of waste or spoliation,
we should probably think we ought to make it good; but
whether the claim be for compensation of a vessel not restored,
or for spoliation before her restitution, it must be founded on
some default in the government."*
in accordance with this letter an arrangement, which had
been proposed for ascertaining damages in the special cases
described in Jefferson's letter of September 5, 1793, was made
general, so that a provisional valuation might be obtained in
any case by the officers of the customs, whenever applied to
by a British consul, without prejudice to the question whether
m the particular case any compensation was due. The precise
character of the arrangement is stated in tiie following circu-
lar of Hamilton to the collectors of customs:
"Treasury Department, Fehruary 10, 1794,
"SiB: A provisory arrangement has been agreed upon with
the ambassador of Great Britain, contained in a letter from
' British Counter Case and Papers, (Teneva Arbitration, American reprint,
552, 580, 582, 012-613.
* British Counter Case and I'apers, (Geneva Arbitration, American reprint,
561.
NEUTRALITY. 4027
the Secretary of State to him, dated 26th December last, to
ascertain the losses by detention, waste, or spoliatiou sus-
tained by such vessels, the property of the subjects of Great
Britain, as have been or shall be captured by French priva-
teers, armed and equipped in the ports of the United States.
^^In order that these measures may be taken with as little
delay as circumstances will permit, I have to request that you
will, whenever applied to by any of the consuls of Great
Britain, in concert with the consul, appoint persons to estab-
lish the value of such vessels and cargoes at the times of their
capture, and of their arrival in the port into which they are
brought, according to their value in such port, transmitting to
me the documents of the proceedings in each case.
*'I am, etc.,
*'A. Hamilton.''
The facts in the case of the Providence, Rob-
The •♦Providence." ertson, master, are not disclosed beyond the
circumstances that she was captured by the
Emhuscade and sent to the United States.
2. Cases Under the Treaty Between the United
States and Mexico op July 4, 1868.
Claimant was on the staflF of Gen. Jesus
Ortega's Case. Gouzales Ortega, who at the time of claim-
ant's arrest wanted to be President of the
Mexican Republic. This claim he based upon the letter of
the Mexican constitution of 1857, which, as he alleged, was
set aside by President Juarez in his own favor by a decree
prolonging his own term of oflQce. General Ortega, with claim-
ant, was on his way to Mexico to assume theofiice of President
and levy war against the Juarez government, which the United
States had recognized, when, having already been warned by
General Sheridan at New Orleans that he would not be allowed
to proceed through his lines on his errand, he and claimant
were arrested on the bank of the Rio Grande in Texas. It
was for this arrest that the claim was made. The commis-
sioners differing, the umpire made the following decision :
"In the case of Fernando M. Ortega y. The United States,
No. 5G0, the claim arises out of the arrest of the claimant by
United States military authorities on November 3, 1806, at
Brazos de Santiago, Texas, and of his imprisonment till the
10th of December. The arrest and imprisonment are not de-
nied by the defense, and there is no doubt that the arrest was
due to information furnished by the Mexican Government
through its accredited minister at Washington, which informa-
4028 INTERNATIONAL ARBITRATIONS.
tion, as coming from a friendly sovereign recognized by the
United States, the government of the latter was bound to
believe. The Mexican Government denounced the claimant as
a deserter, a traitor, engaged in a dangerous conspiracy to sub-
vert the Mexican Government.
<^If tlie military authorities in Texas, then under martial
law, committed a violation of the laws of the United States, it
was in the power of the claimant as transient through that
State to appeal to tlie courts of justice and obtain redress.
But when the Republic of Mexico has concluded a treaty with
the United States for the settlement of claims of her citizens
arising from injuries by the authorities of the United States,
it seems to the umpire very questionable whether a person
who was denounced as a traitor by the Mexican Government,
and was arrested and imprisoned on account of that denuncia-
tion, can now present himself to the commission as a Mexican
citizen and claim on account of that arrest and imprisonment.
'' But apart from this question the umpire is of opinion that
as a matter of comity towards a friendly government the Gov-
ernment of the United States was not only justified under the
circumstances in ordering the arrest and imprisonment of the
claimant, but that it was its duty by taking that course to
prevent the success of a conspiracy against the Mexican Gov-
ernment, which there was sufficient evidence to prove that the
claimant and his companions were endeavoring to carry out
under shelter of the neutral territory of the United States. It
is also to be observed that the measure of arrest and imprison-
ment was forced upon theUnit<id States military by the refusal
of the claimant and his companions to retire to a i)oint in the
United States wliere their object could not so easily have been
carried out, and where there would have been less danger of a
breach of neutrality. Tlie umpire is of opinion that the Gov-
ernment of the United States can not be called upon to make
compensation for the acts of their officers above referred to.''
Thornton, nmpire, .July 11, 1S7(), Fernando M. Ortega v. The United States,
No. 5G0, convention of July I, 18<;^, MS. Op. YI. 258.
A group of claims against the United States,
erExp taon jypowing out of the invasion of Lower Cali-
C&AA8
fornia in 18r)3 by William Walker at the head
of a band of adventurers collected in the I7nited States, was
l)resented to the mixed commission under the convention
between the United States and Mexico of July 4, 1868. The
total amount claimed was .^5,680,110— $2,071,300 for the de-
struction of property, and 83,()0S,810 as damages and inter-
est. The titles of the claims were as follows; Thomas Warner^
No. 890; (ruadalupc Melnidcz^ No. 891; Pedro (iastclum^ No.
892; Santiayo I). Arccj No. 893; Lorcto Amador^ No. 894;
NEUTRALITY. * 4029
Snntoft Cenena and Santa na Sa^z^ No. 895; Francisco del Gas-
tillo Megrete^ No. 905; Juan N, Guerra, No. 906.
These claims formed the subject of elaborate and able briefs,
one of the briefs of Mr. Ashton, the ageut of the United
States, before the umpire, filling 123 printed pages and pre-
senting a thorough discussion both of the law and the facts.
The cases were, however, with a single exception, dismissed
by the umpire, Sir Edward Thornton, for want of proof of the
Mexican citizenship of the claimants. The exception was the
case of Juan N, Onerra^ No. 006, which was also dismissed, but
on the ground of want of evidence to support the claimant's
statements.
A claim against Mexico, based on the circulation of *' calum-
nious reports " touching claimant's connection with Walker's
expedition, was dismissed by the commissioners on the ground
that the facts alleged did not constitute an injury by Mexican
authorities in the sense of the convention.^
A large number of claims were filed before
Bagdad ciaimf. the commission under the convention between
the United States and Mexico of July 4, 1868,
for the loss and destruction of goods and merchandise by the
capture and pillage of Bagdad, a Mexican town situated at
the mouth and on the bank of the Rio Grande, on the morning
of January 5, 1865. These claims were presented both by citi-
zens of the United States and by citizens of Mexico, residents
of the town at the time of its capture. The most of them
were, however, presented by citizens of Mexico.
In the Mexican memorials it was alleged, as the ground of
liability on the part of the United States, that the capture and
pillage were perpetrated " by an armed force of colored sol-
diers, belonging to the army of the United States, under the
command of officers of the said army." At the time of its
capture, Bagdad had for some time been in the possession of
the Imperialist forces, under the immediate command of one
Colonel Rico. By its capture it was restored to the possession
of the authorities of the Mexican Republic.
The history of the transaction began with the appointment
by President Jaurez November 12, 1864, of General J. M. J.
Carvajal as an agent of Mexico, with authority to facilitate
the coming of foreigners into the country, to augment the
' Juan N. Hohinson v. Mexico, No. 25, MS. Op. II. 537.
/
4030 INTERNATIONAL ARBITRATIONS.
military forces of tlie republic, to purchase arms and muni-
tions of war, to raise a loan, and to do various other things in
aid of the Eepublicau cause. In pursuance of this commission
General Garvajal came to the United States and among other
things concluded an arrangement with General Lew Wallace,
whereby the latter was to enter the service of the Republic
of Mexico with the rank of major-general.
In the summer or autumn of 1865 General Wallace brought
General Carvajal and Gen. K. Clay Crawford together in New
York City, as the result of which General Crawford also
agreed to enter the Mexican service. To this end he proceeded
to the Rio Grande, under instructions from General Wallace,
"cautiously to canvass the military district of Texas, adjacent
to the liio Grande, with a view to ascertain the number of
veteran discharged soldiers willing to enter the Mexican serv-
ice," and to try to enlist them, both officers and men, into his
organization. lie was specially charged to ascertain, through
Colonel Trevifio, '* the whereabouts of Col. John S. Ford, late
of the rebel service," and to endeavor to employ him to raise " a
regiment of Texas cavalry." General Crawford himself was
to complete, if possible, a brigade of infantry of three regi-
ments, and for this jmrpose he was to be '' at liberty to accept
discharged Federal sohliers icithout arms, sending them into
rendezvous for organization." The rendezvous was to be on
the American side of the Kio Grande. Unless an arrangement
was made with Colonel Ford no cavalry were to be enlisted or
brought into the rendezvous, as they were diliicult to subsist
and would straggle and subject the i)lan to exposure. Arms,
uniforms, and ammunition were not to be purchased. After
placing the men in camp, General Crawford was not to cross
the liio Grande into Mexico, nor to i)ermit any of his officers
or men to do so, until (jeneral Carvajal shouhl arrive, unless he
should be otherwise instructed either by (General Carvajal or
by General Wallace. On General ( 'Urvajars arrival on the
Kio Grande, (ieneral Crawford was instructed that ** he was of
course to be governed by his orders."
General Crawford, bearing these instructions and a commis-
sion from Carvajal as a general of division, arrived at Browns-
ville, Texas, about November 1, 1805, and there met Francisco
De Leon, who was then acting governor of the State of Tamaa-
lipas. Colonel Trevifio, (Jen. (ruadalupe Garcia, Colonel Hino-
josa, and other military ollicers of the Mexican Republic. Ac-
NEUTRALITY. 4031
compauied by General Garcia, Governor De Leon, Colonel
Garza, aid-de camp on the staff of General Escobedo, and
other officers, he went to Reynosa, where General Escobedo
then had his headquarters. He was presented by General
Escobedo to the troops as an officer of the republic, and subse-
quently to the officers as a general of division in the Mexican
army. General Escobedo was then cominander of the Repub-
lican forces in the north. He returned General Crawford's
visit at Brownsville, accompanied by a number of Mexican
officers, and the subject of capturing Bagdad was then dis-
cussed. In subsequent communications General Escobedo ad-
dressed General Crawford as aii officer in the Mexican service.
In a letter of December 27, 1865, he urged him to " act as
speedily as possible." Crawford had no commission from Pres-
ident Juarez.
Early in the morning of January 4, 1806, a consultation was
held at the house of Thomas D. Sears, at Glarksville, Texas,
just across the river from Bagdad, in regard to an attack on
the latter place. Sears was said to have a commission from
Governor De Leon, appointing him an officer in the Mexican
Liberal navy. Among those present were persons named
Read, Lamberton, Shaw, McDonald, Littlefield, and Earl.
Read was a ''staff officer" of Crawford's; Lamberton was said
to have a commission from De Leon as a captain in the Liberal
array; Shaw, McDonahl, Littlefield, and Earl were all repre-
sented as officers in the Mexican Shvmy or navy. They all
claimed to be acting under the immediate authority of De Leon
and Crawford. Neither of those persons, however, was present.
Some of the party proposed to send for them, and to delay the
attack until they should arrive and assume command of the
movement ; but Read, " as a staff officer " of Crawford's, assumed
the responsibility of an immediate attack, though he consented
to send an express for De Leon and Crawford, who were then
at Brownsville. A messenger was accordingly dispatched, but
about 4 o'clock in the morning of January 5, 1866," the above-
named party, with the addition of others, mostly negroes and
some Mexicans, in all about one hundred, all under the com-
mand of Read, crossed the river into Bagdad." The cross-
ing was effected by means of an English vessel lying in the
river. The town was captured with but little trouble. Gov-
ernor De Leon arrived in Clarksville within three hours after
the attack, crossed the river into Bagdad, assumed command
k
4032 INTERNATIONAL ARBITRATIONS.
of the arrackiiig party, and paroled the prisoners. GTeneral
Crawford arrived at Chirksville late in the afternoon of the
5th. General Escobodo arrived there in the evening of the
same day and crossed into Bagdad on the 6th and assamed
command.
January 25, 18(i6, a military commission was assembled at
Brazos Santiago, Texas, in pursuance of the orders of General
Sheridan, with instructions to report on the capture of Bagdad.
Among the witnesses before the commission was Col. J. D.
Davis, the commander of the United States forces at Clarks-
ville. He produced a letter from Governor de Leon, of Janu-
ary 5, 18(k>, addressed to him, saying: '^This place [Bagdad]
was captured last night by a force of Republican soldiers of
Mexico, acting under the orders of Gen. R. Clay Crawford."
A letter was also laid before the commission from General
Escobedo to Major-General Weitzel, commanding the district
of the Rio Grande, of January 5, 1866, written from Browns-
ville, and saying: "I have the honor to inform you that the
forces under my command have taken the post of Bagdad. Mr.
Crawford, without my orders, has started, it is said, to take
command of said post. As lie has no instructions from me, I
beg that you detain him on his march in order to avoid com-
plications of the gravest nature. 1 start immediately to place
myself at the head of my troops in Bagdad, from which point
I shall write to you whatever may be of interest.'' Among the
persons engaged in the attack was Col. Adolfo Garza, who had,
as it appears, been designated by General Escobedo to com-
mand tlie expedition. After the capture General Escobedo
placed Col. Enrique Mejia in command of the forces at Bag-
dad, Colonel Garza remaining aec^ond in command under him.
By all the testimony b(^fore the military commission it ap-
peared that Bagdad was c nptured by Head, Sears, Garza, Lam-
berton, McDonald, and others, aided by a small force of
Mexicans and negroes, suddenly collected together, some of
whom were deserters and disciiarged soldiers from the Army
of the United States, and others of whom still belonged to it.
None of the ijersons named was an officer of that army.
A number of witnesses for the Mexican claimants before the
mixed commission testified that the town was captured and
pillaged by colored soldiers belonging to the Army of the
United States, under white officers who wore the uniform of
officers of the United States Army. Some of the leaders prob-
NEUTRALITY. 4033
ably did wear that uniform. Read, Earle, and Sears bad ouly
recently been discharged from the service. But no witness
identified by name, rank, or otherwise any actual officer of the
United States Army as being present at the capture. Jan-
uary 7, 1866, General Escobedo, who had then arrived at Bag-
dad and investigated the affair, and who had in the meantime
quarreled with General Crawford at Brownsville, again wrote
to General Weitzel, saying, " at daylight on the morning of the
5th a band of adventurers, without any official character,
attacked this village [Bagdad] and committed all kinds of
depredations." January 9 Colonel Mejia made a report to the
same effect, refusing, as General Escobedo had done, to recog-
nize the military character of Crawford and his associates.
On January 19 Mejia made another report to General Escobedo,
in which, referring to the depositions of certain witnesses, he
declared that the expedition was commanded by Colonel Davis,
of the One hundred and eighteenth regiment of the United
States Army. None of the witnesses, however, to whom the
report referred proved the presence of Colonel Davis; and the
latter testified before the military commission that he was at
the time in bed at his camp, in Clarksville, and that no officer
of his command was, so far as he knew, concerned in the
attack.
After the capture of the town. Sears and some of his associ-
ates claimed, as persons acting under the authority of the
Mexican Republic, the right to take the goods of their enemies
as prize or booty of war, and immediately began to seize the
goods of the inhabitants of the town and transfer them across
the river to Clarksville. Under the circumstances, and espe-
cially as General Escobedo had disowned the military charac-
ter of the captors, the customs authorities of the United States,
in order to arrest irregular importations, stopped the ferries
across the river for a short time. A military guard was
furnished to the deputy collector by General Weitzel to enable
him to protect the property arriving, and exact the payment of
duties. At tliis time great excitement and confusion existed
at Clarksville, where men, women, and children were seeking
refuge from Bagdad. The military guard seized the goods
brought from Bagdad to Clarksville, and the officer in command
retained them in his possession, except where proof of ownership
was furnished and the revenue laws were complied with. In
some cases the claimants, having proved their title, took their
§
4034 INTERNATIONAL ARBITRATIONS.
goods back to Bagdad without i)ayiiig duty. Where conflict-
ing claims were made, tlie i)arties were left to refer their dis-
pute to the judicial authorities.
The military authorities of the United States acted in the
same spirit. After investigating the capture, and declaring
those (*oncerncd in it to have acted without authority, General
Bscobedo requested of General Weitzel a loan of two handred
troops to assist in the restoration of order and the protection of
private property from pillage, besides asking him, as has been
seen, not to recognize li. Clay Crawford in any capacity what-
ever. General Weitzel complied with both these requests.
With the aid of the United States troops, General Escobedo
took military possession of the town, expelled Crawford and
his followers, and ultimately reestablished order.
It was alleged by some of the witnesses for the claimants
betbre the mixed commission that the troops of the United
States sent by General Weitzel at General Escobedo's re-
quest remained in Bagdad, and that they participated, both
officers and men, in the x)illage and robbery of the inhabitants.
To this accusation the agent of the United States, Mr. Ashton,
replied (I) that if it had been true, the United States ought
not to be held responsible, since the troops, though under the
command of United States officers, were to be considered for
the time being as in the service of the Mexican Republic, they
having been sent to Bagdad and kept there at the special
instance and request of General Escobedo; (2) that the accu-
sation was not true in fact, but (3) that, if the goods of any of
the inhabitants were taken after the United States troops
occupied the town, such taking was not to be considered as
pillage or robbery in the common acceptation of those terms,
but as the seizure, made by direction of Colonel Mejia and his
associates, acting under the authority of General Escobedo, of
the goods of their enemies, the Imperialists, for the purpose of
confiscating them. That such seizures were made appeared
from the evidence,' but tlie Mexican witnesses evidently drew
no distinction between seizures made by persons under a claim
of right, and common i)illage.
On all the facts the agent of the United
Argument of Mr. Aah-g^^^^^^ contended that the Mexican claimants
ton.
and the Mexican Government had no legal or
moral ground of complaint against tlie United States on ac-
t
' Dip, Cor. 18GG, part 3, pp. 133-138, 158.
KEUTRALirr. 4035
coant of the transactions at Bagdad. As to the legal aspects
of the case, he maintaiued —
1. That the claiinaDts, being permanent inhabitants either
of Matamoras or of Bagdad, which were at the time in the
possession of the Imperialist authorities, military and civil,
could not be considered as ^^citizeus of the Mexican Republic"
in the sense of the convention J It was true, said Mr. Ashton,
that these decisions did not directly determine the effect of a
hostile occupation of a portion of the territory of a state upon
the political relations and status of its citizens residing in the
conquered country, but he submitted whether they did not
^^ tend to show that in contemplation of the law of nations the
state connections of such citizens were suspended during the
presence of the paramount force, so far as regards foreign
states and their citizens."*
2. That, whether they were so far citizens of Mexico as to be
entitled to present their claims before the commission or not,
they were unquestionably within the legal designation of ene-
mies of the Mexican Republic. The territory they occupied
was enemy's territory, and their having been attacked could
not be asserted by Mexico as an injury to its citizens.^
3. That the consideration of these questions was in fact ren-
dered superfluous by the circumstance that the expedition
against Bagdad was organized and conducted by officers of
the army of the Mexican Republic; that all the parties en-
gaged therein were acting under the authority or color of the
authority of the Mexican Government; and that no officer of
the United States Army or Government participated in the
pillage which ensued upon the capture of the town.
4. That if the movement against Mexico had not been so
organized and conducted, but had been carried on by private
individuals oi>erating from the territory of the United States,
the Government of the United States would not under the
• United States v. Ricey 4 Wheaton, 246; Fleming v. Page, 9 Howard, 614;
Thorington v. Smith, S Wallace, 9; opinion of Attorney- General Black, 9
Op. 42.
- Pafendorf, Bk. VIII. Ch. XI. »ec. 8; The Foltina, 1 Dodson, 451; Bud-
ing V. Smith, 2 Hagg. Consist. 382; ElphinsUme v. Bedreeohund, Knapp, 388;
Fabrigaa v. Moslyn, Cowper, 165.
♦ ThP l»rize Cases, 2 Black. 6a5 ; The Bella Guidita, 1 Bob. 207; 4 Wheaton
254; 2 Gallison, 501; 9 HoWard, 615; 1 Dodson, 151.
5027— VOL. 4 51
4036 INTERNATIONAL ARBITRATIONS.
ciicumstauces have been liable, since no negligence ou tbe
part of tbe American autborities was shown.'
Nearly all the claims against Mexico ^row-
ciaims against Mex- jj^g Q^^ ^f ^jj^ transiiction in qaestion were
lOT. Opinion 0 r. ^jg^iissed by the commissioners. In the case
wadswortn. ^
of John Friery v. Mexico^ No. 541, MS. Op. V.
18, Mr. Wadsworth delivered the following opinion:
"A body of armed men of all nations and colors, acting
under tbe orders of Iciiders jderiving their aathority from the
Mexican Government, through General Garvtyal, instigated
by General Escobedo, and assisted by Governor De Leon,
assaulted and captured Bagdad on the morning of the 5th
January 1860. Tiie town at the time was within the lines of
the French and the Imperialists, and garrisoned and held by a
body of their troops, which were taken prisoners by the assail-
ants.
** As war was raging at the time between the Government of
Mexico and the French, and all persons residing in the town
of Bagdad were enemies of the Mexican Government, without
distinction, they can not complain of injuries received from
the assailing party while the assault was in progress. It is
true that after the capture of the place by the Mexican forces,
it was the duty of the officers commanding to restrain pillage
and protect life and property so far as in their power.
'* 1 am too familiar with the facts attending the scandalous
affair not to know that in the earlier hours of the attack it
was out of the power of liead and Governor De I^eon (who
commanded) to restrain the disorders and that this could not
be done until Escobedo borrowed from the United States com-
mander, (m the opposite bank, a portion of his troops for the
purpose.
"In the mean time pillaging went on, all parties taking a
hand in it — the assailants, tlie garrison, and the mob. The
disonlers were disgraceful enough, but Just such as are inci-
dent to the assault upon a town held by troops, and made in
the darkness and crownejl with snccess. I can not deny the
right of the Government of Mexico to assail and capture a
town 'held by its enemies, an<l do not see how the government
is to be made responsible for the disorders which accompany
a successful assault upon su<h a town, committed upon per-
sons or against the property of persons who are at the time
enemies, when 1 am sure it was impossible for the parties in
command to restrain these disorders.
"These were the hazards of war, and claimant, residing in
the town where the contest rages, must share the fortunes of
the rest of the inhabitants. His small effects were plundered
' (irotius, Do Jure Belli, Bk. II. vh. XXI. ; Vattel, Bk. II. chap. VL aeo.
72; 1 I'hillimore, chap. X. sec. 218.
KEUTRALITY. 4037
in the earlier moments of the capture of the place, and before
the authorities possessed the means or had the time to restore
order and preserve disctipline. We can not tell who did the
mischief; it certainly was not ordered by the officers or coun-
tenanced by them, so far as the proof speaks. It would not
be just to hold a belligerent responsible for such unauthorized
aets committed in an armed town just taken by assault.
Claimant's own fellow-townsmen, or his Imperialist defenders
may have committed them for aught we know. But even if
some of the assailing party made a spoil of his goods it would
be goiug a great way to affirm responsibility on the part of
the government.
'^I think the case must be dismissed, and so it is ordered
accordingly."
Mr. Zamacona, in another claim against
Opmion o . a- ^^jj^jq delivered the following opinion :
maoona. ' ^ ^
" In case No. 139, of the Mexican docket,
relating to the claim of Francisco Garcia Muguerza, the un-
dersigned has given his opinion on what may be termed the
historical part of this case. He then maintained and now
repeats that the Mexican Government can not be charged
with responsibility for the disorders that occurred in Bagdad
in January 1860, but the authorities and officers of the United
States. This im]>lies that the claim can not be made against
the Mexican Government, and should therefore be dismissed."
In the case of Bernardino and Francisco
Claims against the Qarcia Muguerza v. The United States, No.
United States: ^.^^ ^^g ^ yj .^^^^ ^^ ^j^.^j^ ^^^ COmmis-
Opinion of Sir . ' * n V a- i. i j
Edward Thornton, sioners were unable to agree. Sir Edward
Thornton, as umpire, rendered the following
decision:
"After a careful examination and study of the voluminous
evidence submitted on both sides in the case of Bernardino
and Francisco Garcia Muguerza v. The United States, No. 139,
the umpire is fully satisfied and convinced that the party who
on the morning of the 5th of January 1860 attacked and cap-
tured the town of Bagdad in Mexico, did so at the instigation .
primarily of General Escobedo, commander in chief of the
Mexican army of the north, and secondarily of R. Clay Craw-
fonl, and that in the attack upon the town the party was under
the immediate command and leadership of Kead, McDonald,
Lanibertson, and others. It is evident that General Escobedo
had on the part of the Government of Mexi(!0 authorized Craw-
ford to enlist men in the United States for the service of Mex-
ico, and to organize the attack upon Bagdad with men so
enlisted; and that Crawford en trusted Read with the prepara-
tion and carrying out of the attack.
4038 INTERNATIONAL ARBITRATIONS.
" General Escobedo, in his letter of the same day to General
Weitzel, aceei)le(l and assumed the responsibility of the act,
and stated that Hhe forces ander my Jhis] command have
taken the post of Bagdad.' Indeed, it is far from probable
that the same general on the same day wonld have applied to
Colonel Moon for a United States force to preserve order in
Bagdad if he had supposed that he was entitled to complain
that a portion of the same force had attacked and plundered
Bagdad.
^^ It is evident that none of the leaders above mentioned
were officers of the United States Army; they appear to have
been dressed in United States uniforms, but that was an act
for which the United States Government was in no way re-
sjmnsible. The leaders were in tlie service and under the orders
of the Mexican Gov^ernment. The umpire can not discover that
any United States officer was present or gave any order daring
the attack and capture of Bagdad.
^' There is no doubt that there were some colored soldiers in
United States uniforms, and belonging to a United States
regiment stationed at Clarksville, who took part in the attack;
but it is pretty clear that they did so without the knowledge
or consent of their own officers, and that as soon as the latter
became acquainted with tlie fact they ordered the arrest of
those soldiers. The umpire does not even consider that it is
shown that there was a want of due diligence on the part of
the United States officers in not preventing these men from
joining the expedition. General Escobedo had authorized a
violation of the United States laws in encouraging the enlist-
ment of men in the United States to fight against the French,
and preparing the attack upon Bagdad from the United States.
If there was a want of due dili^^ence on the part of the United
States authorities in not discovering that such violations of
the law were being committed and in not preventing them, it
j is possible that the commanders of the French forces might
have been justified in remonstrating against it; but certainly
the Mexican Government, in whose interest, and by the author-
ity of the commander in chief of whose army of the north,
Americans were engaged as Mexican officers, men were enlisted,
and the attack on Bagdad was organized in the United States
territory, and United States soldiers were seduced from their
: duty, was not in a position to protest against the consequences
of the infractions committed by its own officers of the laws of
the United States.
'' It does not appear that mucli plundering, except perhaps
of spirituous li(|uors, was done by the United States armed
soldiers. The greater and more valuable i)art of the goods
were undoubtedly carried oft by the leaders of the expedition.
; But whether these acts were committed by the one or the other,
the umj)ire considers that the Mexican Government alone is
responsible for the acts of its own officers, and that General
Escobedo both knew and assumed the responsibility, and for
NEUTRALITY. 4039
that very reason asked for the assistance of the United States
troops to prevent tbfe pillage which was being committed by
persons who must have formed part of Hhe forces under his
command,' which, in the language of his letter of January 5th,
1866, had ^ taken the post of Bagdad.'
" The umpire is therefore forced into the conclusion that the
Government of the United States can in no way be held
responsible for the above-mentioned claim, and he accordingly
awards that it be dismissed."
Inanotherof the Bagdad cases, Jb«ep^ Cooper
Coopei's oaae (& Co. V. Mexico^ No. 565, being a claim of a
citizen of the United States against Mexico,
Sir Edward Thornton said :
*'In the case of Joseph Cooper & Co. v. Mexico^ No. 565,
the claim arises out of alleged losses and destruction of prop-
erty sulfered by the claimant at the hands of Mexican troops
during an attack upon Bagdad in Mexico, where the claimants
resid^ and were engaged in business. It appears that Bag-
dad was occupied by French, or Imperialists, troops when on
the 5th of January 1866 it was attacked by a Mexican force,
or at least by a force which was acknowledged by the Mexican
military chiefs to be acting under their orders. During the
disorder and confusion which is almost always consequent
upon an attack of this nature, a quantity of property belong-
ing to the claimant was robbed and carried off by some of the
attacking force, or at least by armed men.
"According to the strict rules of war, a belligerent can not
be held responsible for the value of property belonging to resi-
dents, whether natives or foreigners, which has been seized or
destroyed in a place previously occupied by and captured from
the enemy; and though it is more in accordance with the rules
of modern and more civilized warfare to respect the property
of private persons, whether native or neutral foreigners, it is
doubtful whether an international claim can be sustained on
account of the violation of these rules. In the present in-
stance the umpire is of opinion that the principal portion
of the claim arises from the inevitable cause of war. The
pillage and destruction were general and seem to have been
direc;ted against natives as well as foreigners. Neither is the
umpire of opinion that there is any proof of the charge that
the commanders and officers of the force countenanced or par-
ticipated in the plundering of the claimants' property. On
the contrary, it would appear that there was no discipline
whatever and that the plunderers were under no control.
One of the claimants, Joseph Cooper himself, declares that he
went to his office in the morning of the attack and ' on enter-
ing the yard he saw a crowd of soldiers and civilians, all
armed.' At that time no officer seems even to have been pres-
ent. He subsequently returned to his house and found it in
4040 INTERNATIONAL ARBITRATIONS.
posse.^siou of a number of soldiers under the command of Cap-
tain St. Glair, * who claimed to be an officer of the army of the
Kepublic of Mexico.' But there is no proof that this officer
countenanced or encouraged the work of destruction. Tlie
plundering, however, and destruction of claimants' property
seems all to have been done during a few hours immedi-
ately succeeding the capture of the town. It is also to be
observed that the greater part of the plundered pro[)erty was
carried across in vessels belonging to the claimant« to the
Texas side of the river, and that, though a force of United
States troops was stationed there, they did not interfere to
save the property from the i)lunderers nor j)revent it from be-
ing carted away from the store, so that it would seem to be
partly owing to their nonintervention that the proi)erty was
lost.
*^ The umpire is of o])inion that, however de[)lorable it may
be for the sufferers, and however much to be regretted that
such proceedings should not be prevented, the Mexican Gov-
ernment can not under the circumstances be made responsible
for the losses to which the claimants were subjected. With
regard to the seizure some time after the capture of Bagdad of
4i bales of hay and 08 bales of India bagging belonging to the
claimants, which it was said were to be used for puri)08e8 of
<letense, the facts are not sufficiently proved to justify the um-
pire in making an award for their value. There is only the
evidence of one of the claimants to show that they were
taken for that purpose by the order of the Mexican officer in
command.
»* One of the claimants, Joseph Cooper, swears that he was
born in New Orleans, but he has not complied with the rule of
the commission by stating the date of his birth, nor does he
bring any other proof that he is a citizen of the United States.
»' For the above-mentioned reasons the umpire considers that
the Mexican Government ci^n not be held resi)on8ible for the
losses suffered by the claimants, and he therefore awards that
the claim be dismissed."
MS. Op. v. 210, VII. r)I)2. A Kiiiiilar decision was rendered in the case of
JoHvplk L. XimeutH v. Mixiro, No. So<;, MS. Op. VII. 51, in which a claim wau
made on account of the broakinjj^ open and j)landerinj^ of a store on the
entrance of liie cai)torH iuto tlie town.
Claim of the town
A claim was made by the corporation of the
^_ town of Uevnosa, Mexico, ai'aiust the United
01 Seynosa. i . ' , ' «^
States, heiore tin* connnission under the con-
vention of July 4, ISdS, on account (1) of a raid by one A. N.
Norton on the town on ^larch 20, 1S53, and (2) of the entry
into the town on April o, ISGO, of a military force of the
United States of sevcntvor eiichtv men. under the command of
Col. John S. Ford. With regard to the first claim, the umpire.
NEUTRALITY. 4041
Sir Edward Thornton, said that it was not proved that the ex-
pedition under Norton was prepared in the United States, or, if
it was so prepared, that it " was countenanced by or even pre-
viously known to the United States authorities," or " that the
latter could have prevented it or did not use due diligence to
that end," or that !N"orton was '* a justice of the peace of Starr
County or a United States autliority." "On the contrary,"
said Sir Edward Thornton, " it appears that they [the United
States authorities] were completely ignorant of it; but that
after the occurrence, when the guilty persons returned into
Texas, the authorities arrested the leaders of the expedition,
who were tried, but finally acquitted. The Government of the
I7nited States can not, therefore, be held res^wnsible for the
injuries inflicted by that expedition."
With regard to the entrance of United States troops into
Reynosa on April 5, 1860, Sir Edward Thornton said:
" The umpire is satisfied that there was an understanding
between the commander of the Mexican forces in that district
and (3olonel Ford, that the United States forces should be
allowed to follow into Mexican territory the leader Cortina and
his comrades, who had committed so many depredations in
Texas, if the latter should take refuge on the right bank of the
liio Bravo. He is also convinced from the evidence that the
force under Colonel Ford did no damage to either the ayunta-
miento or the inhabitants of Reynosa. If the Mexican Gov-
ernment considered that its territory had been violated, it had
a right to demand satisfaction for the violation; but as no
injury was done to the persons or property of the claimants,
their claim is unfounded. If the ayuntamiento chose to main-
tain a force, the United States Government can not be held
responsible for the expense incurred by that step. The United
States Government was itself iiicurring considerable expense
at the time in maintaining a force to resist the depredations of
Cortina, who with his followers had taken refuge within Mex-
ican territory, whence they were actually threatening acts of
hostility against the United States forces and a United States
steamer, and where they seem to have been very little molested
by the Mexican authorities. The umpire does not consider
that the United States Government can be made responsible
for the above-mentioned claims."
'rhorntoii, umiiire, February 28, 1876, The Corporation of Reynosa v. The
Vnited States, No. 831, MS. Op. VI. 323. Tho claim of FranHsco Garcia Mu-
(jurrza v. The United Staies, No. 636, growing out of the Norton expedi-
tion, waH Hkewise dismissed. (MS. Op. VI. 317.) In tho case of Juan JN'.
Treritio v. The United States, No. 533, MS. Op. VI. 314, growing out of the
entrance of Colonel Ford into Reynosa, it was asserted that a force was
raised in the town for the purpose of resisting Colonel Ford's entry (though
4042 INTERNATIONAL ABBITBATIONS.
in fact it was not resiRted), and that this force was famiahed by elaimant
with arms and snpplios. Sir Edward Thornton, referrirg again to the
movements of ''Cortina and his banditti/' said that Mexico, acting npon
the complaints of the United States, had instracted its offioera to endeavor
to capture Cortina and his band, and to cooperate for that parpoae with
the United States forces on the left bank of the Rio Bravo. Continuing,
Sir Edward Thornton said: ''In accordance with these inatructioos it
appears from the declaration of Guadalnpe Carvsyal, commander in chief
of the Mexican forces in the State of Tamanlipas, that permission had
1)0(;n given to the United States forces to cross into Mexican territory in
pursuit of Cortina and his followers. It was in o-onseqnence of this per-
mission that Colonel Ford entered Reynosa, with the force under his com-
mand; he acquainted the municipality with the object of his visit; and
b«*ing assured that none of Cortina's followers were in that town, he
remained but an hour and recrossed into Texas, whence he again commu-
nicated with the authorities and stated his intention of not returning to
Reynosa. It appears also that on the 6th of April 1860, the day after
Colonel Ford's visit to Reynosa, General Garcia, commaoder in chief of
the line of the Hrazos, addressed a letter to Col. R. E. Lee, command-
ing the United States forces, complaining of Colonel Ford*8 eniering with
his force into Reynosa. Colonel Lee answered on the 12th April that
Colonel Ford supposed that he was acting in accordance with Genenil
Garcia's sanction; and the latter, in his answer of the 14th of that month,
expressed himself satisfied with Cohmel Lee's explanation. There d<HM»
not seem therefore to have been any cause arising out of the action of the
United States authorities for the raising and maintaining of a Mexican
for(M> at Ke>iiosa, nor for the claimant's having temporarily ab^uidoned
the care and manugemeut of his business, and the umpire consequently
fct'ls himself obliged to award that the above-mentioned claim l>e dis-
missed."
3. OASES UNDER ARTICLE XII. OF THE TREATY OF WASH-
INGTON OF MAY 8, 1871.
*' The First National Bank of Saint Albans v.
The Saint Albans / ^ ^ -d • 4. > xr 1
(Ireat Britain, No. 1.
raid.
"Collins H. lluntin^^on r. Same, No. 2.
*' William and Erasmus 1). Fuller i\ Same, No. 3.
"Bradley Barlow, receiver of the Saint Albans Bank r. Same,
No. 4.
"Mariette Field, administratrix, ete., v. Same, No. 6.
" Setb W, Langdon r. Same, No. (5.
"Joseph S. Weeks v. Same, No. 7.
"Breck & Wetherbee r. Same, No. 8.
" Aldis O. Braiiierd r. Same, No. 9.
"Charles F. Everest t?. Same, No. 10.
"Oscar A. Burton, receiver of the Franklin County Bank v.
Same, No. 13.
"Lucien B. Clough, administrator, etc., r. Same, No. 14.
NEUTRALITY. 4043
<^ These claims all arose out of the same transaction, and
were considered and decided together. All, except No. 14,
were claims for property taken and appropriated or destroyed
at Saint Albans, Vermont, by an incursion of rebels, known as
tlie Saint Albans raid, in October 18G4. No. 14 was a claim
brought by the administrator of Elinas J. Morrison, deceased,
to recover damages for the wrongful killing of said deceased
by the rebels engaged in the same raid.
" The entire amount claimed in all the cases was #313,400,
besides interest.
" The allegations in all the memorials were
AUegatioss m e g^i^g^antially the same, and as follows:
"That, shortly before* the 10th of October
1864 a large number of persons, then domiciled or comraorant
within Her Britannic Majesty's province of Canada, combined
together within those provinces for the puri)ose of committing
acts of depredation, rapine, and war from said provinces as a
base of operations, and as a shelter for immediate retreat, against
the persons and property of citizens of the United States resid-
ing within those States. That some twenty or more of those per-
sons, shortly before that day, pursuant to the combinations so
made, i)roceeded from Her Majesty's x>rovince of Canada East
into the territory of the United States, and assembled at the
village of Saint Albans, in the State of Vermont, distant
about twelve miles from the border of said province. That,
being so assembled, they took forcible and armed possession
of a part of said village; there seized and imprisoned several
citizens of the United States; fired shots at sundry citizens;
by such shooting killed the decedent named in No. 14; set fire
to several buildings in the village; entered three of the banks
therein, seizing and imprisoning the officers of such banks,
and seized and appropriated the securities and moneys from
the safes of said banks, together with horses and other prop-
erty named in the several memorial?*. That all these acts were
committed under arms and with military uniform, equipage,
and organization to a greater or less extent. That after the
perpetration of these acts the i)erpetrators retreated in a body
toward the province of Canada, and entered that province,
carrying with them the plundered property, and closely pur-
sued by the citizens of Saint Albans and vicinity, who organ-
ized for that purpose, and wouhl doubtless have captured the
fugitive marauders but for the asylum afforded them by Her
Majesty's province. That shortly after the arrival of the re-
I
4044 INTERNATIONAL ARBITBATI0N8.
treating marauders within the province of Caniida, several of
them were arrested by local magistrates in that province, and
a part of the plunder carried ott' by them was seized by sacli
magistrates and retained in their custody. That immediately
thereafter requisition was made by the Government of the
United States upon Her Britannic Majesty's government for
the surrender of said persons on the charges respectively of
murder, assault with intent to commit murder, and robbery,
committed within the jurisdiction of the United States, such
requisition being based on and conformable to the terms
of article 10 of the treaty of 9th August 1842 between the
United States and Great Britain. That the requisition was
supported by full evicffence on the part of the United States of
the commission by the persons so charged of the acts of vio-
lence above named. That before the hearing before such local
magistrates of the charges preferred against such arrested
persons, Her Majesty's government for said province caused
the jurisdiction of such local magistrates and the proceedings
before them to be superseded by one Charles J. Coursol, a
judicial officer of the province, who took jurisdiction of the
matters charged, issued warrants for the arrest of the persons
so charged, and caused such persons to be removed from the
jail at St. Johns, Canada, where they were confined under
process issued by the local magistrates, to the city of Montreal ;
and also caused the property seized to be transferred from the
custody of the local magistrates to the custody of Her Majes-
ty's officers in Montreal. That a partial hearing was had be-
fore Judge Coursol, on which hearing full evidence was made
of the commission of such acts of violence by the persons so
charged; and that the hearing was, on the application of the
persons charged, unreasonably, and against the protest of
the counsel for the United States, postponed from time to time
to the 13th December 18()4, for the purpose of enabling the
respondents to make proof of their being com'mivssioned and
authorized by the Confederate States of America, so called, to
commit the acts of violence named. That on the 13th Decem-
ber Judge Coursol, without hearing any further ])roofs or argu-
ments, in a hasty, unjudicial, and indecent numner discharged
from custody the persons against whom such hearing had
chietiy proceeded, and all other persons arrested and held on
the same charge, and immediately an<l with indecent haste
ordered the money and property of the claimants found upon
NEUTRALITy. 4045
the persons so charged to be delivered up to them, and per-
mitted them to make their escape therewith, such money and
property amounting to $80,000 and upwards, and having been
fully proved and identified as the money and property of the
claimants, and as having been plundered and carried off by
the persons so charged and arrested and discharged. That
subsequently further warrants were issued by Judge Smith,
one of Her Majesty's justices of the superior court for the said
province, on which warrants, after much delay and hindrance,
arising from the friendliness of the constabulary of the province
to the Confederate raiders and their pretended government,
and the unfriendliness of the same to the United States Gov-
ernment and its people, in consequence whereof most of the
offenders were allowed to Cvscape, and all the money and prop-
erty was allowed to be secreted or removed, five of the per-
sons so (iharged were again arrested and brought before Justice
Smith upon an ai)plication of the United States for their ex-
tradition. That after much delay Justice Smith decided that
till* persons were not the subject of extradition under the
treaty, but were belligerents against the United States in com-
•
niitting the acts complained of, and in making their retreat to
Canada and enjoying its asylum, and discharged the prisoners.
That by these acts of the judicial officers of Canada, Iler
Majesty's government, in effect, refused to surrender the per-
sons who (!ommitted these acts of violence within the United
States, and refused to restore to the l- nited States and to its
citizens the j)roperty and money so taken and carried by the
plunderers into the province of Canada. That in the commis-
sion of these acts, as well as in their organization and i)rei)ara-
tion for the same, these raiders claimed to act under the
authority and in aid of the so called Confederate States of
America — the enemies of the United States — and that their
confederation and organization for the i)urpose of committing
these acts were well known to many of the government
officials, local officers, and citizens of the province of Canada
before the oc^currence of the acts named at Saint Albans.
That in consequence of the culpable negligence or connivance
of the authorities of the province, no steps were taken to pre-
vent the expedition, or to give any information to the Unitexl
States Government, or any of its officers, so as to enable them
to protect themselves against such acts. That both before
and after the acts in (luestion warm sympathy and hospitality
/
4046 INTERNATIONAL ARBITRATIONS.
were extended to the oftenders by a large number of the lead-
ing and influential citizens of the province of Canada, and the
acts themselves were vindicated and approved by some of
the official government newspaper organs in the province;
and that such sentiments prevailed there that magistrates and
peace officers in many instances refused search-warrants and
the necessary assistance to enforce the same; in consequence
of which many of the offenders were allowed to escape with-
out arrest and carry with them the plundered property. The
memorials charged Her Majesty's government and official
authorities in Canada to have been culpably negligent in per-
mitting the raid in question from their borders, and in permit-
ting the returning band, under fresh pursuit, to escape into
Canada and obtain asylum therein, and in refusing to sur-
render them, with their booty, to the United States, and in
neglecting and refusing, upon full notice and demand, to
restore to the United States or to the claimants the money
and property of the claimants so carried off by the raiders.
*' Proofs taken on the part of the claimants
Claimants' proofs, fully established the facts ot the depredations
committed at Saint Albans, as alleged in the
several memorials, and that those depredations were committed
by a body of men who came separately or in small detachments
from Canada in the guise of ordinary travelers and without
any open or apparent organization or military array. That
their tirst apparent action in an organized body or in unison
commenced at Saint Albans, on the 19tli October 1864, and
continued less than an hour. That immediately after the com-
mitting of the dei)re(lations charged in the complaint they
retreated in a body toward Canada; were closely pursued by
the citizens of Saint Albans and vicinity, who rallied for that*
purpose; and that the pursuit was only abandoned upon the
retreating party entering the i)rovince of Canada. The party
acted under the. connnand of one Bennett H. Young, a lieuten-
ant in the army of the Confederate States, and all its members
were claimed to have been connected with the regular military
service of the Confederates.
"The arrest, examination, detention, discharge, rearrest,
and final dist^harge of some of the party, substantially as
alleged in the memorial, were also established by proofs on
the part of the claimants. Testimony was taken on both sides
bearing upon the question of the knowledge by the authorities
NEUTRALITY. 4047
of Canada of the intentious of the Confederates to organize a
raid from Canada apon Saint Albans or other frontier towns
of the United States, and as to the conduct of those authori-
ties in regard to taking any measures to prevent or suppress
such intended raid.
^^ Among the witnesses examined on the part of the claimants
to show such knowledge by the Canadian authorities, and their
failure to take proper steps to prevent or suppress the raid,
were Guillaume Lamothe, cbief of police of the city of Mont-
real, at the time of the raid, and Jacob Rynders, a detective
in the employ of the United States at Montreal at the same
time. The evidence of these and other witnesses tended to
establish the fa«t that the raid upon Saint Albans was arranged
and organized in Canada; that the fact that that raid or simi-
lar raids were in contemplation was known to high officers of
the Canadian Government, among others to Sir George E.
Carder and Sir Etienne Tach6, then members of the Canadian
ministry; to Col. William Ermatinger, a stipendiary magis-
trate, having the entire control of the police force and militia
for the district of Montreal, embracing all the frontier towns
in Lower Canada bordering upon the United States; to La-
mothe himself, chief of police of the city of Montreal; and to
Judge Coursol, government superintendent of police for the
city and district of Montreal.
" The claimants also put in evidence the report of Frederick
William Torrance, esq., who was commissioned in January
1865 by the Canadian Government to investigate and report
upon the proceedings connected with the arrest, examination,
commitment, and discharge of the raiders, the seizure of the
moneys found upon them, and the circumstances connected
with the giving up of such moneys ; also, whether there was
any refusal to execute any warrant for the rearrest of the ac-
cused; if so, by whom and for what reason; and generally to
obtain authentic information of all matters and things con-
nected with such arrest, discharge, and rearrest of the prison-
ers, and the seizure, detention, and giving up of the moneys.
In this report, made to the Canadian Government and dated
18th May 1865, Mr. Torrance went fully over the whole ground
committed to his investigation, Messrs. Coursol and Lamothe
appearing before him and being permitted to cross examine
witnesses. The report recited the facts found by him, including
4048 INTERNATIONAL ARBITRATIONS.
the transactions at Saint Albans substantially as alleged in the
memorials; the tiight of the raiders into Canada, closely pur-
sued by the citizens of Vermont; the arrest in Canada of sev-
eral of the raiders by the local authorities in the district bor-
dering upon Vermont; the seizure upon the persons of those
arrested and in deposits where secreted by them of about $87,000
plundered from the banks; the subsequent taking of jurisdic-
tion of the cases of the persona arrested by Judge Coursol, and
the transfer of those persons to Montreal; the examination of
the prisoners, or some of them, before Judge Coursol, the Gov-
ernment of Canada, the United States, and the i)ri8oner8 all
being represented upon such examination, and the same having
been continued from the 7th November to the 13th December,
including an adjournment of several weeks during that time to
enable the defendants to make i)roof of their relations to the
government of the (Confederate States, and to show that their
acts were those of lawful belligerents and not of private rob-
bers. That on the VMh December an objection was raised by
the counsel for the prisoners to the jurisdiction of Judge Cour-
sol, which* objection had sonie days previously been made the
subject of a private interview between Judge Coursol and
the counsel for the prisoners; and that thereupon the prison-
ers were immediately discharged, and the nioney found upon
them, to the amount of about $87,000, was surrendered to them
by the cliief of police, under the private advice of Judge Cour-
sol, though without any Judicial order to that effect. The
report of Mr. Torrance acMjuitted both Judge Coursol and Mr.
Lamothe of the imputation of being intiuenced by corrupt
motives. It showed th;it after the discharge of the prisoners
by Judge Coursol, new comi)lainrs were made on behalf of the
claimants or their government before Mr. Justice Smith, on
which warrants issued for the rearrest, and that the exe<5Ution
of these warrants was refused by Mr. Lamothe and one of his
dejmties. Under the instructions of Sir (ieorge E. Cartier,
and under the stimulus of a reward offered by the Government
of Canada for the rearrest of the prisoners, five of them were
shortly afterward rearrested upon the warrants issued by
Justice Smith, and on examination were discharged by him,
on the ground that their acts at Saint Albans w(»re belligerent
acts and not crimes subjecting thcin to extradition under the
treaty between the United States and (rreat I»ritain.
NEUTRALITY. 4049
"Mr. Torrance stated bis conclusions upon the whole case to
the following effect:
"That Mr. Lauiothe, as chief of police, committed an improper
act in the surrender of the money to the prisoners without offi-
cial directions from Judge Coursol, as whose agent he held the
money, so to deliver it. That the oral and unofficial instruc-
tion of Judge Coursol to Mr. Lamothe to the effect that the
prisoners, if liberated, would be entitled to the possession of
the money, was not a suflicient. justification to Lamothe for its
delivery, but was an improper instruction on the part of Judge
Coursol, and might have misled Lamothe.
"That Judge Coursol, if his decision that he had no jurisdic
tion of the case was a correct one, was in fault for having
omitted to communicate with the government before announc-
ing such decision and discharging the prisoners, and had laid
himself open to the imputation of a grave dereliction of duty
in a matter of national inij)ortance. And, on the other hand,
if his decision that he had no jurisdiction was erroneous, he
was liable to a criminal prosecution by indictment for malfeas-
ance in his office by reason of the discharge of the prisoners.
"And, finally, that the Government of Canada was respon-
sible to the Government of the United States for the acts of
Judge Coursol and Mr. Lamothe, and was under obligation to
restore the booty brought into the province by the belligerents.
" Under this report the Government of Canada subsequently
refunded to the claimants, to whom the same belonged, the
sum of about $58,000, the gold viilue of the $87,000 seized from
the arrested raiders and subsequently returned to them. This
payment did not include anything on account of the still larger
sums plundered and carried off by the raiders, and which never
came to the hands of the Canadian authorities.
"On the part of the defense various pronii-
B or e e- ^^^^^^ officials of Canada were examined, among
them Viscount Monck, governor-general of
Canada at the time of the raid; Sir John A. Macdonald, K.
C. B., and Sir (ieorge E. Cartier, Bart., members of the
Canadian ministry at the same time, whose evidence tended
to show the absence of any such knowledge or informa-
tion on their part, in regard to any intended invasion of the
United States from Canada, as to call ui)on them for any ])re-
cautionary acts beyond those actually taken by the government,
and to sustain the claim on the part of Her Majesty's govern-
\,i
^..rioSAL ARBITRATIONS.
■/'^"' tro^iuo^^^i government of Canada were charge-
„iiHf' ^^'''^ ^l!jt'k of ^"^ diligence in failing to prevent the per-
..,/»/** »•'''' ^'I'fiio »rn>ng8 alleged by raiders proceeding from
^^.fnin"" ^^^^ fiiiinner above detailed.
''""**' ''In argument it was mahitained on the
^j^Bfliaat ftr • part of the claimants that the evidence showeil
^^ the raid to have been plotted and organized
,„ c'rt"***'**» under the advice and direction of Messrs. C. 0.
('lay. J^'j '^"'^ Jacob Thompson, Confederate agents com-
jiionint in Canada. That the sympathies of the Cana4lian
jieople and the subordinate oflicials of the government were
largely favorable to the Confederate cause and hostile to the
Government of th<» United States. That there was no neu-
trality law in force in Cauiida at the time of the raid. That in
the absence of su<*h neutrality law and by reason of the sym-
pathies of the Canadian j)eople and otlicials with the Confed-
erates, the Conl'ederates wcie enable<l to use Canada as a base
of ()])eratioiis — the scene of their ])lans and arrangements for
warlike acts a^xidnst tlie Tnited States, as their iMunt of de-
parture upon those raids, and their asylum on their return from
them. That suj)j)osing it conceded that Lord Monck and all
his ministry were without fault on their i>art i>ersonally, the
ofticers immediately charged with the inaintainiugof neutrality
upon the frontier — Course >1, luniatinger, and Lamothe — were
shown to have been fully advised of the contemplated inva-
sions, and to liave failed of their duty in reporting their knowl-
e<lge to tlie government, if tliey did fail so to report it, and in
taking nieasiires to ])revent sncli inv^asions.
'*That the positions of Judge Coursol, as superintendent of
l)olice for the city and district of Montreal, and of Colonel
Krmatinger, tin* ma»;istrate charged with the entire control of
the j)olice force and tlie militia for the same district, were such
as to make notice to them, in far*t notice to the government,
and that their failure in any respect to perform their ofhcial
duty was the failure of the government, and charged Great
Britain with the consequences of such neglect.
''That the Covernment of Canada was under obligation to
ccmstantly wat<'h the movenuMits of these eneunes of the United
Stat<'s thus i>lotting the invasion of a friendly nation from the
Camidiau soil; should have arrested the persoiis engaged in
such plots, or shonld have expelled them from Canada; and,
if the law was found insuilicient, shonld have called on parlia-
NEUTRALITY. 4051
ment to make it sufficient. That it was the duty of the Cana-
dian parliament to have provided by law the means of pre-
venting such invasions; and that the absence of such municipal
law could not be pleaded in bar of the international liability
of the government to perform its duty in preserving neutrality
toward the United States, a friendly nation. That in. fact the
Government of Canada actually did nothing to prevent these
violations of neutrality from their soil, though with abundant
reason, irrespective of proof of actual notice or knowledge, to
apprehend such invasions by the Confederates commorant in
Canada; and that the actual notice of such intentions, brought
home to Coursol, Ermatinger, and Lamothe, was a notice to
the government itself, which was chargeable with the nonfea-
sance or malfeasance of those officers. That the Government
of Canada was held to ' due diligence ' to prevent military
operations by the enemies of the United States from the soil
of Canada as a base of operations against the United States.
That the measure of this diligence was to be determined by the
nature of the danger to be apprehended from the neutral soil,
the magnitude of the danger and the results of negligence,
the means of the United States to resist or prevent it, the
sympathy and aid which the enemies of the United States
might receive in Canada, and the unfriendliness of the people '
of Canada to the United States, the fact of plans for former
raids known to the Government of Canada, and the hostile
speeches and avowed intentions of the enemies of the United
States, found in large numbers in that province. That all
these considerations combined to require strict diligence on the
part of the Canadian Government to prevent hostile incursions
into the United States across the long and unprotected frontier
between those States and Canada.
'^The counsel for the claimants insisted that the Canadian
Government had entirely failed in the performance of these
international duties, and that by reason of such failure Great
Britain was liable to the United States for the injuries inflicted
by the raiders; that the United States had done all in their
power, and all which they were required by international law
to do, to protect themselves against such dangers from Canada,
and that the government of those States had in their diplo-
matic corresjmndence preferred such claims against the Gov-
ernment of Her Britannic Majesty and had fully provided by
the treaty for the submission of them to the decision of the
commission.
5627— VOL. 4 52
4050 INTERNATIONAL ARBITRATIONS.
ment, that the provincial government of Canada were charge-
able with no lack of due diligence in failing to prevent the per-
petration of the wrongs alleged by raiders proceeding from
Canada in the manner above detailed.
^^In argument it was maintained on the
Argument or e ^^^ ^^^ ^^^ claimants that the evidence showed
Claimants*
the raid to have been plotted and organized
in Canada, under the advice and direction of Messrs. O. C.
Clay, jr., and Jacob Tlionipson, Confederate agents com-
moraiit in Canada. That the sympathies of the Canadian
people and the subordinate officials of the government were
largely favorable to the Confederate cause and hostile to the
Government of the United States. That there was no neu-
trality law in force in Canada at the time of the raid. That in
the absence of such neutrality law and by reason of the sym-
pathies of the Canadian people and officials with the Confed-
erates, the Confederates were enabled to use Canada as a base
of oi)erations — the scene of their ])hins and arrangements for
warlike acts against the United States, as their point of de-
parture upon those raids, and tlieir asylum on their return from
them. That supposing it ('onceded tliat Lord Monck and all
his ministry were without fault on their part personally, the
officers immediately charged with the maintaining of neutrality
upon the frontier — Coursol, Krmatinger, and Lamothe — were
shown to have been fully advised of the contemplated inva-
sions, and to have failed of tlieir duty in reporting their knowl-
edge to the government, if they did fail so to report it, and in
taking measures to i)revent such invasions.
"That the i)()sitions of Judge ('oursol, as superintendent of
police for the city and district of Montreal, and of Colonel
Ermatinger, the magistrate charged with the entire control of
the i)olice force and the militia for the same district, were such
as to make notice to them, in fact notice to the government,
and that their failure in any respect to perform their official
duty was the failure of the government, and charged Great
Britain with the conse([ueiices of such neglect.
^'That the Government of (Canada was under obligation to
ccmstantly watch the movements of these enemies of the United
States thus plotting the invasion of a friendly nation from the
Canadian soil; should have arrested the persons engaged in
such plots, or should have expelled them from Canada; and,
if the law was found insufficient, should have called on parlia-
NEUTRALITY. 4051
ment to make it sufficient. That it was tbe duty of the Cana-
dian parliament to have provided by law the means of pre-
venting such invasions ; and that the absence of such municipal
law could not be pleaded in bar of the international liability
of the government to perform its duty in preserving neutrality
toward t!ie FnitM States, a friendly nation. That in. fact the
Government of Canada actually did nothing to prevent these
violations of neutrality from their soil, though with abundant
reason, irrespective of proof of actual notice or knowledge, to
apprehend such invasions by the Confederates commorant in
Canada; and that the actual notice of such intentions, brought
home to Coursol, Ermatinger, and Lamothe, was a notice to
the government itself, which was chargeable with the nonfea-
sance or malfeasance of those officers. That the Government
of Canada was held to ' due diligence ' to prevent military
operations by the enemies of the United States from the soil
of Canada as a base of operations against the United States.
That the measure of this diligence was to be determined by the
nature of the danger to be apprehended from the neutral soil,
the magnitude of the danger and the results of negligence,
the means of the United States to resist or prevent it, the
sympathy and aid which the enemies of the United States
might HMcive in Canada, and the unfriendliness of the people *
of Canada to the United States, the fact of plans for former
raids known to the Government of Canada, and the hostile
speeches and avowed intentions of the enemies of the United
States, found in large numbers in that province. That all
these considerations combined to require strict diligence on the
part of the Canadian Government to prevent hostile incursions
into the United States across the long and unprotected frontier
between tliose States and Canada.
^^Tlie counsel for the claimants insisted that the Canadian
Government had entirely failed in the performance of these
international duties, and that by reason of such failure Great
Britain was liable to the United States for the injuries inflicted
by the raiders; that the United States had done all in their
power, and all which they were required by international law
to do, to protect themselves against such dangers from Canada,
and that the government of those States had in their diplo-
matic correspondence preferred such claims against the Gov-
ernment of Her Britannic Majesty and had fully provided by
the treaty for the submission of them to the decision of the
commission.
5627— VOL. 4 52
4052 INTERNATIONAL ARBITRATIONS.
<<The counsel for the claimants cited the opinion of Coant
Sclopis upon the question of due diligence in the tribunal at
Geneva; also, on the same subject, 1 Phill. 21, 230 to 232; 3 id.
201 to 237 ; Halleck, 318, 624. They also cited various pas-
sages from the diplomatic correspendence between the govern-
ments of the United States and Great Britain during the war,
and from the papers before the Geneva tribunal, as well as
from the protocols to- the treaty of 8th of May 1871, to show
that the Government of the United States had always claimed
the British Government responsible for the injuries to their
citizens by the Saint Albans raid, and that these injuries occu-
pied a prominent place among the claims of citizens of the
United States against Great Britain for acts committed during
the war, for tlie purpose of passing upon which this commission
was instituted.
^^On tlie part of the defense it was main-
Argumen or e e- ^^jjj^^ |^y j^^p Majesty's counsel that the
proofs in the case showed no state of facts
importing any lack of care or diligence on the part of the
authorities of Canada in the maintenance of their interna-
tional obligations; that the persons who committed the acts
coiii])lained of at Saint Albans did not enter the States from
Canada in a body, nor with any military array or equipment;
that they passed over the lines from Canada individually or in
small parties, with the api)earance and in the manner of ordi-
nary travelers; that the authorities of Canada had no reason
to 8npi)ose them engaged in a hostile expedition against the
Uniti»d States, and that no grounds existed for their arrest or
detention by those authorities ; that there was nothing in their
api)earance or movements to excite suspicion ; that the Gov-
ernment of the Ignited States had, in 18G2, voluntarily annulled
its own passport regulations which had previous to that time
required all persons coming from Canada into the United States
to be provided with passports countersigned by the United
States consul-general at Montreal ; and that from that time
until after the Saint Albans raid there was no regulation inter-
fering with the free and ordinary i)assage of traveleis across
the line; that the degree of diligence contended for by the
counsel for tlie claimants w(mld have required of the Canadian
authorities a careful examination of every person traveling
from Canada to the States as to his character and objects, and
NEUTRALITY. 4053
would, in eflfect, have abolished the free interconrse between
the provinces and the States which had existed under the
full assent and approval of both governments; that from the
diplomatic correspondence between the two governments it
appeared that the United States had never preferred a claim of
pecuniary liability against Great Britain on account of this
raid, but, on the contrary, the American Secretary of State,
Mr. Seward, had on different occasions expressed his satisfac-
tion with the action of the Canadian authorities, and had par-
ticularly expressed through the British legation his thanks to
Lord Mouck, the governor-general, for the assistance rendered
by the Canadian authorities toward the detection and arrest of
the oflfeuders; that in the protocols of the treaty, in the four
preliipinary notes between Mr. Secretary Fish and Sir Edward
Thornton, on the subject of the formation of the Joint High
Commission which framed the treaty, and by the confidential
memorandum or brief sent by Secretary Fish to General
Schenck of that commission for the information and guidance
of himself and colleagues, there was no allusion to the Saint
Albans raid, much less to any claims on the part of the United
States growing out of the acts committed or omitted by the
British Government in relation thereto; that tlie only expla-
nation that could be given of this omission was that the Gov-
ernment of the United States did not consider itself entitled
to make any international demands in the premises; that in
fact the proofs failed to show that the raid was organized in
Canada, that the raiders procured arms or ammunition there,
or did any other act within Her Majesty's dominions in viola-
tion of her just neutrality, which was known to, or with due
diligence might have been known to, the Canadian authorities;
that, on the contrary, the evidence strongly tended to show
that the raid was in fact organized within the United States,
and that no act compromising British neutrality was committed
by the raiders; that no liability was shown by the evidence,
and none was claimed by the claimants' counsel to exist
against Great Britain by reason of the omission alleged in the
memorials of the Canadian authorities to surrender the raid-
ers under the extradition treaty; that the acts of the raiders
were belligerent acts, and as such afforded no ground for
extradition.
" Her Majesty's counsel cited the opinion of Count Sclopis
in the tribunal at Geneva; also, 1 Phillimore, 230 to 232.
4054 INTERNATIONAL ARBITRATIONS
^^The cominission unanimously disallowed
Disallowance of the ^^j ^^^ ^j^j^^^
claims.
^^ Mr. Commissioner Frazer read an opinion,
in which 1 am advised that the majority of the commission
concurred, as follows:
" ' I may not be prepared to say that Great Britain used that
diligence to prevent hostile expeditions from Canada against
the United States which should be exercised by a neutral and
friendly neighbor; but in the view which 1 take of these claims
til is question is not important, and need not therefore be de-
cided.
'' « The raid upon Saint Albans was by a small body of men,
who entered that place from Canada without anything to indi-
cate a hostile purpose. Tliey came not in an organized form,
so as to attract attention, but apparently as peaceable indi-
viduals traveling by railroad and not in company, and stopi>ed
at the village hotels. That there was a preconcerted hostile
purpose is unquestionable, but this was so quietly formed, as
it could easily be, that even at this day the evidence does not
disclose the phice, the time, nor the manner. Tlie Government
of the United States was at the time diligent, by means of its
detectives, to know what mischievous expedition might be
organized by rebels in Canada, but it failed to discover this
one until after it had done its work. Such was the secrecy
with which this i)articular affair was planned that I can not
say it escaped the knowledge of Her Majesty'^s officers in Can-
ada because of any want of diligencre on their part which may
possibly have existed. 1 think rather it was because no care
wiiicli one nation nniy reasonably require of another in sacb
cases would have been sutticient to discover it. At least the
evidence does not satisfy me otherwise.' "
American and Hritisli Claims CommisHion, treaty of May 8, 1871, Article
XII. Hale's Report, 21. See also Howard's Keport, 157, GOO, 650,674,698,
7012, 706, 713.
'' Walter Oliver Ashley r. Oreat Britain, No. 19.
The Lake Erie Kaid. '-This case was, in general character and in
most of the circumstances accomi)anying it,
analogous to the cases g:r()wing out of the Saint Albans raid
above reported. The evidence on each side in the Saint Al-
bans raid cases was invoked into this case, and the case was
argued, submitted, and decided in connection with thosecases.
**Tlie memorial alleged that some months prior to Septem-
ber 1804 Confederate refugees, domiciled or commorant in the
provinces of Canada, there planned and organized a warlike
enterprise of forcibly api)ropriating steamers of the United
States on Lake Erie and using them for the capture of the
NEUTRALITY. 4055
United Sti:tes war steamer Michigan,, then stationed on Lake
Erie; that by such capture the plan contemplated the release
of some 3,000 Confederate prisoners confined on Johnsons
Island, in Lake Erie, near the American shore, and also to
obtain control of the lakes and power to destroy and pillage
the cities of the United States bordering thereon; that the
existence of the plan for such expedition was known to the
(Canadian authorities for many months before September 1864,
and that such knowledge was communicated by the governor-
general of Canada in November 1803 to Her Majesty's min-
ister at Washington, who communicated it to the War Depart-
ment of the United States, but that no steps were taken by
Her Majesty's government for said provinces to prevent the
execution of the plan.
^^That on the 19th of September 1864 about thirty Confed-
erate soldiers came on board the steamer Philo Parsonn^ a
private freight and passenger vessel of the United States, at
certain Canadian ports, with concealed weapons shipped as
freight, the vessel being then on her regular trip from Cana-
dian ports to Sandusky, Ohio; that immediately after the
vessel had crossed the boundary line between the Canadian
provinces and the States this party rose with arms upon the
crew, took forcible and armed possession of the vessel, making
l)risoners the officers and crew, threw overboard and destroyed
a large quantity of the cargo; siezed the money of the claim-
ant, an officer and part owner of the vessel; shaped the course
of the vessel for the war steamer Michigan^ and on their way
overhauled, seized, and sunk in American waters another
private steamer of the United States, the Inland Queen,, but,
failing to receive expected signals, abandoned their project of
capturing the Michigan,, raised the Confederate flag upon the
Philo Parsons^ changed her course, and proceeded toward
Sandwich in Canada; that on arriving at Sandwich on the
L'Otli of September they plundered the Philo Parsonn while
lying in British waters, landed their booty in the provim^e of
Canada, sunk or partially sunk the steamer, and retreated in
a body within the province of Canada with the plundered
l)roperty taken from the vessel.
"The memorial contained allegations similar to those con-
tained in the memorials in the Saint Albans cases as to the
asylum afforded by Canada to the retreating raiders; as to
the negligence of the Canadian authorities in failing to pre-
4056 INTERNATIONAL ARBITRATIONS.
vent the expedition, and also in failing to take proper steps in
apprehending the raiders and surrendering them under the
extradition treaty, and in restoring the property, captured and
carried oflF by them.
<^The claimant claimed for himself and as the assignee of
all the other owners and claimed damages in the premises,
•16,093.
<^The evidence in the case sustained the allegations in the
memorial as to the circumstances of the capture and destruc-
tion of the vessels and the seizure of the property alleged,
and as to the assignment of the claims of other owners to the
claimant.
" Upon the question of due diligence by the Canadian authori-
ties, the claim was rested on both sides substantially on the
evidence taken in the Saint Albans cases, and the arguments
of the respective counsel upon this question were substantially
those urged in the Saint Albans cases, with the additional
point, urged on behalf of the defense, that the Canadian Gov-
ernment had promi)tly given notice to the Government of the
United States of the information received by them as to the
contemplated raid, thereby putting the United States Govern-
ment fuMy upon its guard.
"The claim was unanimously disallowed.''
Aineric.in and British Claims Commissiou, treaty of May 8, 1871, Article
XII. Hale's Koport, 30. See also Howard's Keport, 158, 717, 728, 733.
CHAPTER LXVIII.
NEUTRALITY: THE GENEVA ARBITRATION.
The stipulations of the Treaty of Washington of May 8, 1871,
in relation to the Geneva arbitration may be found in the first
volume of this work (pi). 547-553). In accordaiice with those
sti])u1ations, each government filed in due order a printed ( 'ase,
a printe<l Counter Case, and a printed Argument, and later, by
request of the arbitrators, (counsel on each side ]>re8ented Sup-
plemental Arguments, either in writing or orally, in further
elucidation of certain points. We give below a summary of the
cases and counter ca^es, and also a digest of the fiicts and argu-
ments touching each vessel inculpated, or sought to be incul-
pated, and of the opinions and decisions of the arbitrators.
The first question to be considered is that of ''due diligence."
1. Due Diligence.
In the Case of the United States, the posi-
^*" °Bt^!ei!^'"^^ tion of that government on the question of
due diligence was defined as follows:
"The United States understand that the diligence which is
called for by the rules of the treaty of Washington is a due
diligence; that is, a diligence proportioned to the magnitude
of the subject and to the dignity and strength of the power
which is to exercise it — a diligence which shall, by the use of
active vigilance, and of all the other means in the power of
the neutral, through all stages of the transaction, prevent
its soil from being violated — a diligence that shall in like
manner deter designing men from committing acts of war upon
the soil of the neutral against its will, and thus possibly drag-
ging it into a war which it would avoid — a diligence which
prompts the neutral to the most energetic measures to discover
any purpose of doing the acts forbidden by its good faith as a
neutral, and imposes upon it the obligation, when it receives
the knowledge of an intention to commit such acts, to use all
the means in its power to prevent it.
4057
4058 INTERNATIONAL ARBITRATIONS.
"No diligonce short of this would be *due;' that is, com-
mensurate tcith the einerge^icy^ or iciih the magniivde of the
results of negligence. UDderstaiiding the words iu this sense,
the United States finds them identical with the ine-asure of
duty which Great Britain had previously admitted."*
In the (3ase of Great Britain, the qaestion
Case of Great Britain, of due diligence was treated as follows:^
" 9. Due diligence on the part of a sovereign
government signifies that measure of care which the govern-
ment is under an international obligation to use for a given
purpose. This measure, where it has not been defined by in-
ternational usage or agreement, is to be deduced from the
nature of the obligation itself, and from those considerations
of justice, e(iuity, and general expediency on which the law of
nations is founded.
*'10. The measure of care which a government is bound to
use in order to prevent within its jurisdiction certnin classes
of acts, from which harui might accrue to foreign states or
their citizens, must always (unless specifically derermine<l by
usage or agreement) be de|)endent, more or less, on the sur-
rounding circumstances, and can not be defined with precision
in the form of a general rule. It would commonly, however,
be unreasonable and impracticable to require that it should
exceed that which the governments of civilized states are ac-
customed to employ in matters concerning their own security
or that of their own citizens. That even this measure of obli-
gation has not been recognized in practice might be clearly
shown by reference to the laws in force in the ])rincipal coun-
tries of Europe and America. It would be enough, indeed, to
refer to the history of some of these countries during recient
periods for i)r()of that great and enlightened states have not
deemed themselves bound to exert the same vigilance and
employ the same means of repression, when enterprises pre-
pared within their own territories endangered the safety of
neighboring states, as they would probably have exerted and
employed had their own security be«n similarly imperiled.
^ The case of the Uuited States cited the following authorities : VinniiiR,
Comment, ad Inst. lib. 3. tit. 15; Ayliffe, Pjindeets, B. 2, tit. 13, pp. 108-110;
Wood's Institutes, p. 1()6; Hallifax's Civil Law, p. 78; Bell's Comm. $232
etseq.; Browno's Civil and Admiralty Law, vol. 1, p. 354; Krskine's Insti-
tutes, Bk. 3, tit. 1 ; Bowyer's Civ. Law, p. 174; Mackenzie's Roman Law,
p. 186; Domat's Civ. Law, by Strahan, vol. 1, p. 317; Ileineccius, Klemeuta
Juris Civilis, lib. 3, tit. 14, Opera, torn. V; Story on Bailments, ^ 14; Steam-
boat Nnp World y. hiiuf, 17 How. 475; Hay on Liabilities, ch. 8; Speech of
Lord Granville, London Timcn, June 13, 1871; Speech of Sir Roundel! Pal-
mer, August 4, 1871. See Papers relating to tbe Treaty of Wasbington, I. 67.
"Papers relating to the Treaty of Washington, I. 237,412.
neutrality: the geneva arbitration. 4059
" 11. In every country where the executive is subject to the
laws, foreign states have a right to expect —
"(r/) That the laws be such as in the exercise of ordinary
foresight ini^ht reasonably be deemed ade(iuate tor the re-
])ression of all acts which the government is under an inter-
national obligation to repress;
"(//) That, so far as may be necessary for this purpose, the
laws be enforced and Ihe legal powers of the government
exercised.
" But foreign states have not a right to require, where such
Liws exist, that the executive should overstep theii in a par-
tiiular case, in order to jnevent harm to foreign states or their
citizens; nor that, in order to prevent harm to foreign stfites
or their citizens, the executive should act against^ the persons
or property of individuals, unless upon evidence which would
justify it in so acting if the interests to be protected were its
own or those of its own citizens. Nor are the laws or the
mode of judicial or administrative procedure which exist in
one country to be a])])lied as constituting a rule or standard
of comparison for any other country. Thus, the rules which
exist in Great Britain as to the admission and probative force
of various kinds of testimony, the evidence necessary to be
produced in certain cases, the questions proper to be tried by
a jury, the functions of the executive in regard to the preven-
tion and i)rosecution of otienses, may diflf'er, as the organiza-
tion of the magistrature and the distribution of authority
among central and local officers also differ from those which
exist in France, (lermany, or Italy. Each of these countries
has a right, as well in matters which concern foreign states or
their citizens, as in other matt^^rs, to administer and enforce
its own laws in its own fornm, and according to its own rules
and modes of procedure; and foreign states .can not justly
complain of this, unless it can be clearly shown that these
rules and modes of procedure conflict in any particular with
natural justice, or, in other words, with i)rinciples commonly
acknowledged by civilized nations to be of universal obliga-
tion.
• # • • « • *
*'A charge of injurious negligence on the part of a sovereign
government, in the exercise of any of the i)owers of sover-
eignty, needs to be sustained on strong and solid grounds.
Every sovereign government claims the right to be independent
of external scrutiny or interfeience in its exercise of these
powers; and the general assumptioir that they are exercised
with good faith and reasonable care, and that laws are fairly
and properly administered (an assumption without which peace
and friendly intercourse c(mhl not exist among nations), ought
to subsist until it has been displaced by i)roof to the contrary.
It is not enough to suggest or ])rove that a government, in the
exercise of a reasonable judgment on some question of fact or
t
4060 INTERNATIONAL ARBITRATIONS.
law, and using the means of information at its command, has
formed and acted on an opinion from which another govemment
dissents or can induce an arbitrator to dissent. Still less is it
sufficient to show that a judgment pronounced by a court of
competent jurisdiction and acted upon by the executive was
tainted with error. An administrative act founded on error
or an erroneous judgment of a court may, indeed, under some
circumstances found a claim to compensation on behalf of a
person or government injured by the act or judgment. But a
charge of negligence brought against a government can not be
supported on such grounds. Nor is it enough to suggest or
prove some defect of judgment or penetration, or somewhat less
than the utmost possible promptitude and celerity of action
on the part of an officer of the government in the execution of
his official duties. To found on this alone a claim to compeu-
sation, as for a breach of international duty, would be to exact
in international affairs a perfection of administration which
few governments or none attain in fact or could reasonably
hope to attain in their domestic concterns. It would set up an
impracticable and therefore an unjust and fallacious standard,
would give occasion to incessant and unreasonable complaints,
and render the situation of neutrals intolerable. Nor, again,
is a nation to be held responsible for a delay or omission occa-
sioned by mere accident and not by the want of rea^sonablo
foresight or care. Lastly, it is not sufficicMit to show that an
a<5t has been done which it was the duty of the government to
endeavor to prevent. It is necessary to allege and to prove
that there has been a failure to use for the prevention of an act
which the'government was bound to endeavor to prevent such
care as governments ordinarily emi)loy in their domestic con-
cerns and may reasonably be expected to exert in matters of
international interest and obligation. These considerations
apply with especial force to nations which are in the enjoyment
of free institutions, and in which the government is bound to
obey and can not dispense with the laws."
The British Counter Case treated the sub-
British Counter Case. • . .i i
ject thus:'
"It may readily be conceded that the care exerted by a
government to i)revent violations of its neutrality should bear
some proportion to the probable conseijuences of such offenses.
It may be conceded also that the responsibility incurred by
failing to prevent an offense must materially depend on the
power which the government possessed of ])reventing it. So
far as this, the British (xovernment concurs with the Q-ov-
ernment of the United States. But Her Majesty's govemment
can not admit that the measure of diligence due from neutral
powers ought to be proportioned in any way to their relative
degrees of dignity; it knows of no distinction between more
dignitied and less dignified powers; it regards all sovereign
^Papera relating to the Treaty of Washington, II. 229.
NEUTRALITY: THE GENEVA ARBITRATION. 4061
states as enjoying eqnal rigbts and equally snbject to all ordi-
nary international obligations; and it is firmly persuaded that
there is no state in Europe or America which would be willing
to claim or accept any immunity in this respect ou the ground
of its inferiority to others in extent, military force, or popula-
tion. In truth, the arbitrators will have clearly perceived,
from this statement already presented to them on the part of
Great Britain, that in a country which, with free institutions,
possesses a large commercial marine and a very extensive
ship-building trade, the difficulty of preventing enterprises of
this nature is, instead of being less, far greater than in coun-
tries which are not so populous and where these conditions are
not united; and just allowance ought to be made for this dif-
ficulty. The assertion that due diligence means a diligence
which shall prevent the acts in question, and shall deter men
from committing them, if taken literally, can only signify that
no government can be held to have done its duty which has
not been completely successful. * * * it has been shown,
by ample evidence, in the case presented on the part of Great
Britain, that the measures adopted by the British Government
did prevent and deter men from enterprises which would have
violated or imperiled her neutrality; all tliat the United States
have to complain of is that these measures proved ineffectual
to prevent or deter, in a very small number of cases, in which
the agents contrived to escape observation, or the difficulty of
obtaining evidence uas great. That due diligence requires a
government to use all the means in its power is a proposition
true in one sense, false in another: true, if it means that the
government is bound to exert honestly and with reasonable
care and activity the means at its disposal; false, impractic-
able, and absurd, if it means that a liability arises whenever
it is possible to show that an hour has been lost which might
have been gained, or an aitcidental delay incurred which
might, by the utmost foresight, have been prevented; that ah
expedient which might have succeeded has not been tried;
that means of obtaining information which are deemed un-
worthy or improper have not been resorted to; or that the
exertions of an officer or servant of government have not
been taxed to the utmost limit of his physical capacity.
In the Argument of the United States the
United States Aigu- g^j^j^^ ^f ^q^ diligence was fully discussed in
the following passages: ^
"Dwc diligence as required by the three rules of the treaty and the
principles of international laic not inconsistent theretcith.
^« I. The subject of < due diligence,' both in its nature and
its measure, as an obligatory duty of Great Britain under the
three rules of the treaty is much considered upon principle
^ Papers relating to the Treaty of Washington, III. pp. 154-158.
4062 INTERNATIONAL ARBITRATIONS.
and antborities in the Oase of the United States and is com-
mented npon with some fallness in the British Case and Conn-
ter Case. Neither a very technical nor a merely philosophical
criticism of this definite and practical phrase, adopted by the
high contracting parties and readily estimable by the tribunal,
can be of much service in this Argument. Some propositions
and illustrations may aid the arbitrators in applying the obli-
gation thus described to the facts and circumstances under
which its fulfillment or failure therein is to be decided by their
award.
^^ II. The foundation of the obligation of Great Britain to
use 'due diligence to prevent^ certain acts and occurrences
within its jurisdiction, as mentioned in the three rules, is that
those acts and occurrences within its jurisdiction are offenses
against international law, and, being injurious to the United
States, furnish just occasion for resentment on their part and
for reparation and indemnity by Great Britain, unless these
offensive acts and occurrences shall be affirmatively shown to
have proceeded from conduct and causes for which the Gov-
ernment of Great Britain is not responsible. But by the laW
of nations the state is responsible for all offenses against in-
ternational law arising witliin its jurisdiction by which a for-
eign state suffers injury, unless tlie former can clear itself of
responsibility by demonstrating its freedom from fault in the
premises.
''The high contracting parties, mindful as well of this prin-
cipal proposition of res|)()nsibility of a state as of this just
limitation upon it, have assigned as the true criterion by which
this responsibility is to be judged in any case arising between
nations the exhibition or omission on its part of ' due diligence
to prevent' the offenses which of themselves import such re-
sponsibility. The offenses and the injuries remain, but the
responsibility of the one nation and the resentment of the
other therefor are averted by exculpation of the state at whose
charge the offenses lie ui)()n adecjuate proofs to maintain its
defense.
"The nature of the presumptive relation which the state
bears to the offenses and injuries ini[)uied and proved neces-
sarily throws upon it the burden of* the exculpatory proof
demanded — that is to say, the proof of due diligence on its
part to prevent the offenses which, in fact and in spite of its
efforts, have been connnitted within its jurisdiction and have
wrought the injuries complained of.
" III. It is incumbent, then, upon Great Britain to satisfy
the tribunal that it used ' due dili<j:enee to prevent' what actu-
ally took place, and for which, in tlie absence of such 'due
diligence to prevent,' the tribunal will adjudge it responsible.
The nature of 'diligence' and t\w measure of it exacted by
the qualifying epithet 'due' may now bo considered.
"(rt) The English word diUgence in eomnion usage and in the
text of the treaty alike adheres very cdosely to the Latin origi-
NEUTRALITY: THE GENEVA ARBITRATION. 4063
nal, dilifientia. It imports, as Its derivation from diligo (to
love, or to choose earnestly) requires, enlistment of zealous
purpose toward the object in view, and activity, energy, and
even vehemence in its attainment. It has been adopted both
in the civil law and in the common law of England from com-
mon speech, and for this virtue in its vulgar meaning, which
can give practical force and value to the legal duty it is used
to animate and insjure. 80 far, then, from the word bearing a
technical or learned sense in its legal application either to pri-
vate or national obligations, the converse is strictly true. A
definition from approved authorities of the Knglish language
common to the high contracting parties is the best resort
for ascertaining the sense intended in the text ot the treaty.
Webster defines * diligence' as follows: * Steady application in
business of any kind; constant etibrt to acconjpiish what is
undertaken; exertion of body or mind without unnecessary
delay or sloth ; due attention ; indnstry; assiduity.' He gives
also this illustrative definition: 'Diligence is the philosoi)her''s
stone that turns everything to gold;' and cites as the example
of its use this verse from the English Scriptures: 'Brethren,
give diligence to make your calling and election sure.'
" We confidently submit that no appreciation of the sense of
this cardinal phrase of the treaty is at all competent or ade-
quate which does not give full weight to the ideas of enlisted
zeal, steady application, constant efltbrt, exertion of all the
approj)riate faculties, and without weariness or delay, atten-
tion, industry, and assiduity.
^'(b) The qualifying epithet 'due' is both highly significant
and eminently practical. It re(iuires the ' diligence,' in nature
and measure, that is smsonahlc^ appropriate, and ade^iuate to tlie
exigencies which call for its exercise. It is to be, in method,
in duration, and in force, the diligence that is suitable to, or
demandable by, the end to be accomplished, the antecedent
obligations, the interests to be secured, the dangers to be
avoided, the disasters to be averted, the rights that call for its
exercise.* ' Prwstat exactam diligeniiam^^ a phrase of the civil
law, is a just description of the undertaking 'to use due dili-
gence.' Those who incur this obligation to prevent an injury
are excused from responsibility if they fail only by deficiency
of power. *Oeux qui, pouvant empecher un dommage que
quelque devoir les engageait de prevenir, y auront manque,
pourront en etre tenus suivant les circonstances.'^
"(c) The British Case and Counter Case attempt to measure
'due diligence' in the performance of this international duty
to the United States in the premises of this arbitration by the
degree of diligence which a nation is in the habit of employing
in the conduct of its own affairs. It is objection enough to this
test that it resorts to a standard which is in itself uncertain
and fluctuating, and which, after all, must find its measure in
* See Webster's Dictionary in rerbo Due.
8 Domat; Lois civiles^ Li v. II. tit. 8, $ 4, No«S«
4064 INTERNATIONAL ARBITRATIONS.
tbe same judgineut which is to i)a8s upon the original iuqairy,
and to whicli it may better be at once and directly applied.
It is quite obvious, too, that this resort can furnish no stand-
ard, unless the domestic 'affairs' referred to be of the same
nature, magnitude, and urgency as the foreign obligations with
which they are thus to be compared. Probably the United
States might be well satisfied with the vigilance and activity
and scope and energy of means that Great Britain would have
exhibited to prevent the outfit and escape from port of the
Alabama and her consorts had hev own commerce been threat-
ened by the hostilities they were about to perpetrate and her
own sliips been destined to destruction by the tires they were
to light; but this is not the standard which the arbitrators are
invited to assume by this reasoning of the British Case and
Counter Case. They are expected to measure the due diligence
which Great Britain was to use, under tlie requirements of the
treaty, to prevent the destruction of the commerce and mari-
time property of the United States by the ordinary system of
detection of frauds upon the customs. Even this comparison
would not exculpate, but would absolutely condemn the con-
duct of Great Britain in the premises; but the standard is a
fallacious application of the proposed measure of diligence, and
the measure itself, as we have seen, is wholly valueless.
^' 111. The maxims and authorities of the law of ' due dili-
gence' in the determination of private rights and redress of
private injuries may not very often present sui!iciently near
analogies, in tlie circumstances to which they are applied, to
the matter liere under Judginent to greatly aid the deliberations
of the tribunal. There is, however, one head of the law of
private injuries familiar to the jurisjnndence of these two great
maritime ])owers which may furnish valuable pra<;tical illus-
trations of judicial reason wliich they both respect, and whose
pertinency to certain considerations proper to be entertained
by the arbitrators can not be dis|)uted. We refer to the law
of responsibility and redress for collisions at sea,
'*In the first place, this subject of marine collisions is re-
garded by scientific writers on the law of diligence as falling
within the rules which govern liability for ordinary negligence^
the position in which the contentions of the British Case and
Counter Case seek to ])lace international responsibility of Great
Britain to the United States.
" In the second place, the controversy between the parties
in these cases is admitted to exclude the notion of intent or
willful purpose in the injury, an element so strongly insisted
upon in defending Great Britain here against the faults laid
to her charge by the United States.
"In the third place, the circumstances of difficulty, danger,
obscurity, uncontrollable and undiscoverable influences, and
all possible opportunities ot innocent error or ignorance, form
the staple elements of the litigation of marine collisions, as
they are urged, with ingenuity and persistency, in defense
neutrality: the geneva arbitration. 4065
before this tribunal against the responsibility of Gre )t Britain
for the disasters caused to the United States by the means and
agencies here under review.
"And, lastly, the eminent judges who have laid down the
law for these great maritime nations, in almost complete con-
currence, in this department of jurisprudence, have not failed
to distinguish between fault and accident, in a comprehensive
and circumspect survey of the whole scene and scope of the
occurrences, from the moment that the duty arose until the
catastrophe, and through all the stages of forecast, precau-
tion, provision, and preparation, which should precede, and of
zeal, activity, promptitude, and competency, which should
attend, the immediate danger. We cite a few cases, not de-
pendent upon a knowledge of their special facts for the value
of the practical wisdom they inculcate, and taken, with a single
exception, from British decisions:
" ' in law, inevitable accident is that which a party charged
with an oflFense could not possibly prevent by the exercise of
ordinary care, caution, and maritime skill. It is not enough
to show that the accident could not be prevented by the party
at the very moment it occurred, but the question is, could pre-
vious measures have been adopted to render the occurrence of
it less probable! (The Virgil, 7 Jur. 1174; 2 W. Rob. 205;
Notes of Cases, 499; The Juliet Urskine, 6 Notes of Cases, 633;
The Mellona, 3 W. Rob. 13; 11 Jur. 783; 5 Notes of Cases,
450; The Dura, 5 (Irish) Jur. (N. S.,) 384.)' »
" ' In order to establish a case of inevitable accident, he who
alleges it must prove that what occurred was entirely the result
of some vis major ^ and that he had neither contributed to it
by any previous lut or omission, nor, when exposed to the in-
fluence of the force, had been wanting in any effort to counter-
act it. (The Despatch, 3 L. J. (N. S.) 220.)'='
" 'It is not a vis major which excuses a master, that his ves-
sel had caused damages to another in a tempest of wind, when
he had warning and sufficient opportunity to protect her from
that liazard. (The Lotty, Ulcott, Adm. 329.)' ^
*'*It is no excuse to urge that from the intensity of the
darkness no vigilance, however great, could have enabled the
vessel doing the damage to have descried the other vessel in
time to avoid the collision. In proportion to the greatness of
the necessity, the greater ought to have been the care and vig-
ilatice employed. (The Mellona^ II Jur. 783; 3 W. Rob. 13;
5 Not^s of Cases, 450.)'^
" *It is necessary that the measures taken to avoid a colli-
sion should not only be right, but that they should be taken
in time. (The Trident^ 1 Spink's Eccl. and Adm. Rep. 222. )'»
" ' If circumstances arise evidently and clearly requiring
prudential measures, and those measures are not taken, and
» Pritohard'8 Adm. Dig. 2d ed. vol. i. p. 133. ^ Id. 135.
« Id. 134. 6 Id. 140.
3 Id. 134, note.
s
4066 INTERNATIONAL ARBITRATIONS.
the natural result of such omission is accident, the court would
be inclined to hold the party liable, even if such result were
only possible. (The Itinerant, 2 W. lloh. 240^ 8 Jur. 131; 3
Notes of Cases, 5.)' '
'* 'The want of an adequate look-out at the time on board a
vessel at sea is a culpable nef^lect on her part, which will,
prima fa^jiCy render her responsible for injuries received from
her. (The Umihj, Olcott, Adin. 132; 1 Blatch. Ct. Ot. 230;
The Indiana, 1 Abb. Adni. ,'530.)'-
" 'To constitute a good look-out there must be a sufficient
number of persons stationed for the purpose, who must know
and be al)le to discharge that duty. (The George, 9 Jur. 670;
4 Notes of Cases, 101.)''
" IV. In assigning a just force to the *dne diligence,' upon
the presence of which, in the failure of Great Britiiin actually
to prevent the injuries complained of, its exculpation by the
tribunal is to turn, we have had no occasion to insist upon any
severity or" weight of obligation too burdensome for the rela-
tion of neutrality to endure. On the contrary, both the senti-
ments and the interests of the United States, their history and
their future, have made, and will make, them the principal
advocates and defenders of the righta of neutrals before all the
world. In i)lcadiiig before this tribunal for indemnity at the
hands of Great Britain for the vast injuries which its uon-.
fullillment of neutral (hities has caused, the United States de-
sire no rule or measure of such duties to be assumed or applied
by this tribunal that its enlighteued and deliberate judgment
would not assign as suitable to govern the ccmduct of each one
of tlie equal and independent powers which are represented
in this arbitration. The United States do not themselves un-
dertake to become to other nations (jnarantors of the action of
all persons within their .jurisdiction, and they assert no such
measure of responsibility against Great Britain, They lay no
claim to 2Jfr/(('t ion or /;(/'a////>///7?/ of administration, or security
against iwpo.sition^ misadrcnture, mifivarriage^ or misfortunes
nor would they seek to charge (ireat Britain, or any other
nation, upon any such nMpiirement or accountability. But the
United States do maintain that the disposition and action com-
imrting with 'due diligence,' as reasonably interpreted, are
adequate to prevent, and will prevent, but for extraordinary
obsta<les or accidents, violations, by a iM)\verful state, of its
duties to other nations; that when such prevention fails, the
proof of this disposition and action toward prevention, and of
the obstacles and accidents that thwarted the purpose and the
effort, are denuindable by the aggrieved nation, and thatui)ou
that ])roof the judgment of exculpation or inculpation is to
l)roceed.
*' V. In conclusion, we conceive that the arbitrators are un-
questionably the rightful judges of what constitutes 'due
» Pritclianrs Adiu. Dig. LM t-d. vol. i. p. 141. ^ij. 143^
- Id. Vdi, note.
NEUTRALITY: THE GENEVA ARBITRATION. 4067
diligence,' in the sense of the treaty, and that this secures not
only to the contending parties, but to the rights, duties, and
interests cared for by the laws of nations, a reasonable, a
practical, and a permanent rule and measure of obligation,
just in its judgment of the past, and wise and beneficent in its
influence on the future. We concur in the final considera-
tions of the British Counter Case on this subject of due dili
gence, in leaving 'the arbitrators to judge of the facts
presented to them by the light of reason and justice, aided by
that knowledge of the general lowers and duties of adminis-
tration which they possess as persons long conversant with
public affairs.' '' ^
From the discussion of the subject of due
British A gument. diligence in the British Argument, the follow-
ing i)assage8 are extracted.'^
'* 28. Due diligence on the part of a government signifies that
measure of care which the government is under an obligation
to use for a given puri)ose. This measure, whore it has not
been defined by international usage or agreement, must be
deduced from the nature of the obligation itself, and from those
considerations of justice, equity, and general expediency on
which the law of nations is founded.-'
" 1:9. Where the substance of the obligation consists in the
prevention of certain acts within the territory of a neutral
l>ower, from the consecpiences of which loss might arise to
foreign states or their citizens, it would not be reasonable to
exact, as of right, from the government, a measure of care
exceeding that which governments are accustomed to exert in
matters affecting their own Kecurity or that of their own citi-
zens. No duty which nation owes to nation can possibly be
higher or more imperative than that which every state owes
to its own members, for whose welfare it exists, and to whom
the government, however constituted, is morally and primarily
responsible for the right exercise of its powers.* An extract
from the able Danish jurist, Tetens, bearing on manifestly just
and reasonable principle, has been given in a note at pago.2;i
of the British Counter Case,
'*30. An observation to the same effect as the foregoing in
the Case of Great Britain has been excei)ted to in the Counter
Case of the United States on the ground that 'it sets up us
the mejisure of care a standard which lluctuates with each suc-
ceeding government in the circuit of the globe.'^ This is an
error. Where individuals are in question, the only general
standards of due care which it has been found possible to frame
• Hritisli Conn tor Case, 125.
-P:iI>«rH relating to tlio treaty of Washington, 1I[. 268; sec, also, 381),
443, .17<;, 480.
• British CaHo, 2\, i>ropoHition 9.
• nritisli Case, 1()7. Connter Ciise of the United States, sec. ii. par. 3.
• British Case, 24 proposition 10. British C'onntor Case, 21, 22.
5627— V(»L. 4: 33
4068 INTERNATIONAL ARBITRATIONS.
are framed with reference either to the care which the particu-
lar iudividual against whom negligence is alleged is accus-
tomed to exert in his own concerns, or to the care which men
in general, or particular classes of men, are Jiccustomed to
exert in their own concerns. To standards of this kind, with
various modifications and under dittereut forms of expression,
jurists and judicial tribunals in all countries have commonly
had recourse to assist them to a decision in cases of allegeil
negligence, Where the acts or omissions of a govern n>ent are
in question, it is certainly not unreasonable that the general
standard of care, so far as any general standard is possible,
should be drawn from the ordinary conduct of governments in
matters afi'ecting those interests which they are primarily bound
to protect. The objection suggested by the United States that
the standard is a fluctuating one is therefore not only errone-
ous in itself, but might with etjual reason be urged against the
principles of decision commonly applied to analogous cases in
the administration of private law. Its tendency, if admitted,
would be to introduce a universal hypothesis of absolute and
arbitrary powers as the rule of judgment for all such inter-
national controversies.
** 31. Great Britain has, however, submitted to the arbitra-
tors that the question, what measure of care is in a given case
sufficient to constitute due diligence, can not be defined with
precision in the form of a general rule, but must be determined
on a careful consideration of all the cireun)stances of the given
case.' In the British Counter Case tlic history and experience
of the ITnited States themselves, during the war between (Jreat
Britain and France at the close of the last century, during the
wars between Spain and Portugal and their revolted colonies,
and still more recently in the cases of expeditions and hostile
movements organized within the United States against Mexico,
Cuba, and Great Britain, has been largely referred to for the
purpose of showing what has heretofoie been deemed sufficient
by the Government of the United States to satisfy the obliga-
tions incumbent upon them in this respect toward other nations,
and how imperfect a measure of success has attended their
efforts to restrain their citizens from lawless acts inconsistent
with those obligations.^ The statements in the British Counter
Case on this subject will be found to be corroborated by the
papers appended to the Counter Case of the United States.
Those pa])ers show the various instructions and i)roclamation8
issued with the object of preventing violations of the American
law. The British Counter Case shows how, for a long series of
years, and also very recently, those instructions and proclama
tions have been successfully evaded. Mr. Seward, in his dis-
patch to Mr. Adams, dated the lid March 1S<;:^, thought it suffi-
cient to ex])ress the desire and expectation of the President
that IJer Majesty's government would 'take the necessary
J^ritibh Counter Ca^e, 22, - Id. -5-47.
NEUTRALITY: THE GENEVA ARBITRATION. 4069
measures to enforce the execution of the law as faithfallv as
his own government had executed the corresponding statutes
of the United States.'* This is a test of due diligence, by which
ller Majesty's government might safely be content to have its
conduct tried. It does not believe that upon any candid mind
the comparison would leave an impression to the disadvantage
of Great Hritain.
'^32. It is absolutely necessary, in considering charges such
as are made against Great Britain by the United States, to
take into account, for some x>uri)Oses, the laws and institutions
of the nation charged, the powers with which its government
is invested, and its ordinary modes of administrative and judi-
cial procedure. These are among the circumstances which
bear on the question of negligence, and they have a most mate-
rial bearing on it. In all civilized countries the government
possesses such powers only as are conferred on it expressly or
tacitly by law. The modes of ascertaining disputed facts are
regulated by law. Through these powers the executive acts,
and to these methods of inquiry it is bound to have regard.
To exclude these from consideration in questions relating to
the peformance of international duties would at once render
such duties intolerable and their performance impossible.
'^ 33. These considerations in no way affect the principle that
the duties of neutrality are in themselves independent ol"
municipal law. Those duties are not created by municipal
law; they can not be abolished or altered by it. But since, in
the discharge of international duties, every nation acts through
its government, and each government is confined within the
sphere of its legal powers, the local law and local institutions
can not be disregarded when the question arises, whether in a
given case a government had sufficient grounds of belief to
proceed upon, and whether it acted with proper diligence."
Count Sclopis, in his opinion, said:^
Opinion of Connt
Sslo'sis. " ^^® words due dihgejice necessarily imply
the idea of a relation between the duty and
its object. It is impossible to define a priori and abstractly
an absolute duty of diligence. The thing to which the dili-
gence relates determines its degree. Taking the scale of
degrees of default according to the Roman law, descending
from the dolus by the culpa lata and culpa levis to the ctilpa
levisaima^ we find that their applicability changes according to
the objects to which they refer. 1 ])ass over the responsibility
of the guardian, of the trustee, and several other cases speci-
fied in the law, and will only cite as examples cases in wliich
responsibility is incurred by the culpa lens and even lerissima.
Such is that, for instance, which attaches to persons charged
with the care of explosive substances, or with looking after the
' Appondix to Case of the Unitxul Stsites, vol. i. p. 0(59.
-Papers relating to the Treaty of Washington, IV. 5^.
4070 INTERNATIONAL AKIUTRATIONS.
safety of dams in time of iimudation, or iii wliose charge are
deposited papers of exceptional iui])ortance. All these per-
sons, from the fact alone of their having accepted these
functions, are bound to exercise an amount of diligence deter-
mined by the special object of these same functions.
" In treating of political questions the greatest extent
which could be given to the duties of diligence incumbent on
a neutral would be to require that he should act with regard
to the belligerent as he would act in similar circumstances in
his own interest.
" It is undoubtedly right to take into account the require-
ments of a belligerent with regard to a neutral, but these must
not be pushed to such a point as to embarrass the neutral in
the normal exercise of his rights or in the organization of his
administrative functions.
"I willingly admit, on the other hand, that the duties
of the neutral ])ovver can not be determined by the laws
which that power may have made in its own interest. This
would be an easy means of eluding positive responsibilities
which are recognized by equity and imx)osed by the law of
nations. There exists between nations a general law, or, if it
is preferred, a common tie, formed by equity and sanctioned
by respect for reciprocal interests. This general law receives
especial development in its application to acts which take
place at sea, where no frontiers are marked out, and where
there is the greatest necessity that liberty should be secured
by a common law, without which it would be impossible to
defena one's self by positive guaranties fnnu the most flagrant
acts of injustice. This is what prompted the saying of one
who had been brought up in habits of servility to say, 'The
Emperor is master of the earth, but the law is the mistress of
the sea.' 1 grant, then, tlie riglit of the belligerent to require
that the neutral should not shelter his responsibility under
rules made by himself in his own interest, and 1 enter fully
into the views of Article VI. of the treaty of Washington,
which simply gives the preference to rules of general equity
over the provisions of any particular system of legislation,
whatever it may be.
'* It does not, however, seem to me admissible that a bellig-
erent should be able to require of a neutral that, in order to
fultill his neutral duties, he should increase his military estab-
lishments or his ordinary system of defense. This would be an
encroachment on the independence of a state, which is not
bound to abdicate a portion of its material sovereignty.because
it finds itself involuntarily in a special position with regard to
the belligerent. The neutral may be asked to i)ut the iK>wer8
of his government into full activity in order to maintain his
neutrality; he can not reasonably be expected to modify the
organization of his administrative machinery to serve the
interests of another power.
*' We must beware of rendering tlie condition of neutrals too
difficult and almost \m\>o^^\bV^, TVvii, vui\)ortance of circum-
NEUTRALITY: THE GENEVA ARBITRATION. 4071
scribing war is a matter of continual remark, and if neutrals
are to be overwhelmed with a burden of precautions and a
weight of responsibility which is in excess of the interest they
have to remain neutral, they will be forced to take an active
part in the war; instead of a proper inaction we should have
an increiise of hostilities. There will no longer be any medii
between combatiints; the disasters of war will be multiplied,
and the part of mediators, which neutrals have often under-
taken and brought to a successful conclusion, will forever
disappear.
** Let us, then, take a view which will induce neutrals and
bellijrerents mutually to respect one another. Let us take as
a basis the two conditions of neutrality laid down by Dr. L.
Gessner*
"These are:
''1. To take absolutely no part in the war, and to abstain
from all that might give an advantage to one of the belligerent
parties.
*' 2. Not to permit on the neutral territory any proximate
hostile act of one party against the other.
*^A8 to the measure of activity in the performance of the
duties of a neutral, I think the following rule should be laid
down:
" That it should be in a direct ratio to the actual danger to
which the belligerent will be exposed through the laxity of the
neutral, and in an inverse ratio to the direct means which the
belligerent can contiol for arresting the danger.
'^ This rule leads us to a solution of the question, so often
discussed in the documents presented, as to the initiative to
be taken by the neutral in order to preserve his neutrality to
the profit of the belligerent.
" Where the ordinary conditions of the country, or particu-
lar circumstances which have occurred on the territory of the
neutral, constitute a special danger for the belligerent, who
has no direct means of protecting himself from them, the neu-
tral is bound himself to take the initiative in order that the
state of neutrality may be maintained with regard to the two
belligerents.
" This initiative may be taken either on account of a flagrant
case of some enterprise of one of the belligerents against the
other, or on the application of the belligerent denouncing a
fa(*t or a series of facts which would constitute a violation of
neutrality in regard to him — t. e., which would improve the
position of one belligerent to the detriment of the other.
"• It does not appear that the neutral could in su(!h case
release himself from responsibility by requiring the belligerent
to furnish him with evidence sufficient to institute regular pro-
ceedings before the courts. This would be to i educe the bel-
ligerent to the condition of a mere subject of the government
of the country. The law of nations is not contented with these
narrow measures of precaution; it requires a larger measure
of assistance. This is demanded not only by tlv^ ci^m\U\% vi\\«t
4072 INTERNATIONAL ARBITRATIONS.
(fcntcH, but also by ttie real necessity which nations are under
to lend reciprocal aid and protection in order to maintain their
independence and g^uarantee their security.
<* The greater, then, the actual danger to the belligerent on
the territory of the neutral, the more is the latter bound to
watch over his neutnility and to prevent its being violated to
the profit of either of the belligerents.
"The matter appears under a somewhat diflferent light when
the belligerent can, ot himself, by the employment of his forces,
hold his enemy in check, even on the noutral territory. This
case piesents itself in particular when the geographical posi-
tion of a state is sufficient of itself to secure the means of
promptly repressing any enterprise prepared on the ncntral
territory. Under such circumstances the neutral would no
longer be bound to assume an initiative which would have no
object. He could not, however, from considerations of self-
respect, allow his neutrality to be violated, and he would be
bound to comply with any Just demand which might be ad-
dressed to him, in order to avoid any kind of connivance with
one or other of the belligerents.
'^ If from abstract principles we pass to the consideration of
the particular facts lor which the I'nited States hold that
(rreat Britain is responsible, we must commence by discussing
the construction of ships and the circumstances under which
such construction took place. Indeed, the fact of the con-
struction of the vessels, of their armament, and equipment,
and of the export of arms, assumes a different aspect accord-
ing to the circumstances of the time, the persons, and thti
localities in which it occurred. If the government on whoso
territory the acts take place is aware of a permanent state of
aflairs, leading to a decided probability that such construc-
tion, armaments, and exports will be affected with the object
of assisting the designs of a belligerent, the duty of vigilance
on the part of the goveinment becomes more pressing, and
exists to a greater extent."
Mr. Sta<^mpiii, in his oinnion, said:
Mr. Staempfli's ' '
Opjjiion. **The 'due diligence' to be exercised implic-
itly comprises vigilance and initiative on the
part of the neutral itself, with the object of discovering and
preventing any violation of its own neutrality. A belligerent
state is neither bound, i.or has it the right, to exercise surveil-
lance or to ] perform police duties in a neutral state in lieu of
the local authorities.*'
Mr. Adams, in his opinion, said:^
Mr. Adams's Opinion. ''Tlicse words (due diligence), which arc
found in the first and third of the rules pre-
scribed by the Treaty of Washington for the government of
the arbitrators in making up their Judgment, have given rise
' I'apfrs relatin«^ to tlir Tn-aty ol' WashinLjtoii, IV. 141.
necjTrality: thk Geneva arbitration. 4073
to inmli discussion in the preparatory argruments of the oppos-
iii*>^ ]);ntles.
*'Oii the side of (ireat Britain, an explanation of them is
^iven in the 9th, 10th, and 11th proiwsitions, laid down on the
24th and 25th pages of The Case.
*'The subject is agaiu considered in pages 21 and 22 of the
volume called the Counter Case.
'* It is again referred to in the 8th and 9th pages of the vol-
ume called the Argument or Summary.
'' Lastly, it is treated in a more general way in the argument
]>resente(i by Sir Roundell Palmer, counsel on behalf of Her
Britannic JNlaJesty, on the 25th July last.
'^0\\ the side of the Uiiited States, an explanation is pre-
sented in pages 150 to 158 of the volume called The Case.
^•It is again referred to in the 0th page of the Counter Case.
**The subject is again treated in pages 31G to 322 of the
Argument or Summary.
•'Lastly, it is discussed in a more general way in the argu-
ment submitted by the counsel on behalf of ti:e United States
on the 5th and (Ith of August.
''The objection which I am constrained to admit as existing
in my mind to the British discussion is that it appears to ad-
dress itself for the most part to the establishment of limita-
tions to the moaning of the words rather than to the explana-
tion of the obligations which they imply.
" The objection which I am constrnined to find to the Ameri-
can definition is that I do not find the word 'due' used in the
sense attributed to it in any dictionary of established authority.
" Yet it does not ap[)ear to me so difficult to find a suitable
meaning for these words. Perhaps it may have been over-
looked from the very fact of its simplicity.
'• 1 understand the word diligence to signify notmerely work,
but, to use a familiar phrase, work with a will.
''The. force of the qualifying epiihet *due' can be best ob-
tained by tracing it to its origin. All lexicographers derive it
irom the Latin verb 'debere,' which itself is a compound of
two words 'de' and 'habere,' which means 'quasi de alio ha-
bere'— that is, in English, to have of or from another,
"Assuming this to be the primary meaning, I now come to
the second stei>. The first having implied something received
by one person from another, the si»cond implies equally an
obligation incurred thereby. ' Debere,' in Latin means to owe.
In French it becomes 'devoir,' which is e<]aivalent to debt, to
duiy, (u* to obligation. In English it is thus defined by two
eminent authorities:
"Kichardson: 'That which is owed; which anyone ought
to have, has a right to demand, claim, or possess.'
''Webster: 'Owed; that ought to be paid or done to another ;
that is due from one to another, which contract, justice, or pro-
priety requires one to pay, and which he may justly claim as his
riffht.'
4074 INTERNATIONAL ARBITRATIONS.
'* I have searched a ^reat variety of other anthorities, but
•do not cite them, as thev only repeat the same idea.
"Hence, it may be inferred that the sense of the words *due
diligence- is that of ^earnest labor owed to some other party,'
which that party may claim as its right.
'^But, if this definition be conceded, it must naturally fol-
low that the nature ami extent of this obligation can not bo
measured exclusiv^ely by the judgment or pleasure of the party
subject to it. If it could, in the ordinary transactions between
individuals, there would be little se^jurity for the faithful |)er-
formance of obligations. If it were not that the party to whom
the obligation has been given retains a right to claim it in the
sense that he understand^* it, his prospect of obtaining justice
in a contested case would be but slight.
"If this view of tlie meaning of the words be the correct
one, it follows that when a neutral goviTnment is bound, 218 iu
the first and third rules laid down in the treaty for our guid-
ance, to use <due diligence' in regard to certain things, it
incurs an obligation to some external party, the nature and
extent ot which it is not competent to it to measure exclusively'
by its own will and pleasure.
" Yet the assumption that it is competent appears to me to
underlie the whole extent of the British position in this con-
troversy.
" It may, indeed, be affirmed that no sovereign power in the
last resort is accountable to any other for the results of the
exercise of its own judgment, arrived at in good faith.
"This ])roposition maybe admitted to be true in point of
fact; but it is obvious that proceedings under it gain no sanc-
tion under any law but that of sui)eriority in physical force.
"To escape this alternative, resort has been bad to an at-
tempt at definition of a system of rights and obligations, to
whiih the assent of civilized nations imparts authority in the
regulation of their reciprocal duties.
'* Under that system all the nations recognizing it are placed
on a perfectly equal looting, no matter what the nature of their
relative force. To borrow a sentence from the British Counter
Case —
" * Her Majesty's government knows of no distinction between
more dignified and less dignified powers; it regards all sover-
eign stat.es as enjoying ecpial rights, and equally subject to all
ordinary international obligaticms; and it is firnly persuaded
that there is no state in Europe or America which would be
willing to claim or accept any immunity in this respect on the
ground of its inferiority to others in extent, military force, or
population.'
"Admitting this position in its fullest extent, it may at the
same time be affirmed that if Her Majesty's government were
to enter into a contract with these various states, as a neutral
power, to use due diligence in certain emergencies, not one
even of the smallest of them would fail to deny that Her Maj-
NEUTRALITY: THE GENEVA ARBITRATION. 4075
osty's g:overn merit was the exclusive judge of the measure of
its obligations contracted under tliose words.
** Wliat is, then, the rule by which the actual i)erformance of
this duty can bo estimated! It seems to me tolerably plain.
Whatever may be the relative ]>osition of nations, the obliga-
tion between them res^B upon the basis of exact and complete
reciprocity. Hence the compact embraced in the words* due
diligence' must be fulfilled according to the construction ]>1ace<l
ui)ou the terms by each separate nation, subject to reasonable
modifications by the just representations of any other nation
with which it is in amity, suft'ering injury from the consequences
of a mistake of negligence or intention. These may very nat-
urally grow out of the great ditterences in their relative posi-
tion, which should ])roperly be taken into consideration. In
the struggle which took place in America *due diligence' in
regard to the commercial interests of one of the belligerents
meant a very different thing from the same words applied to the
other. The only safe standard is that which may be reached by
ronsidering what a nation would consider its right to demand
of another were their relative positions precisely reversed. If
the duediligence actually exercised byonenation toward another
does not prove to be exactly that diligence which would be sat-
isfactory if applied to itself under parallel circumstances, then
the obligation implied by the words has not been properly ful-
filled, and reparation to the party injured is no more than an
act of common justice.
• •' Such seems to be the precise character of the i)reseut con-
troversy. Her Majesty's government denies that the measure
of diligence due by her as a neutral to the Uniied States as a
belligerent during the late struggle was so great under the law
of nations as it has been, with her consent, made by the terms
of the treaty. But in either case she claims to be the exclu-
sive judge of her fiilfiUment of it, apart from the establishment
of this tribunal, to which she has consented to appeal. But
this very act implies the consciousness of the possibility of
some debt contracted in the process by the use of these terms
that may justly be claimed by another party. Of the nature
and extent of that debt, and how far actually paid, it is the
province of this tribunal to determine, after full consideration
of the evidence submitted. Such is the construction I have
placed upon the words *due diligence.' "
Sir Alexander Cockburn, in his opinion,
Opinion of Sir Alez- g^^J •!
ander Cookbom.
"The diligence required of a government to
prevent infractions of neutrality may relate (1) to the state of
its numicipal law; (2) to the means possessed by it to x)revent
such infractions; (3) to the diligence to be used in the applica-
tion of such means to the end desired.
' l*aper8 relating to the Treaty of Washington, IV. 2(>r).
4076 INTERNATIONAL ARBITRATIONS.
^'Aa to tlie law, the subject mtiy be divided into tlie pndiibi-
tive hiw or, as it is termed iii the Ameri<*iin case, the puuitive
hiw, and tlie preventive Liw — that is, the h\\v whereby the gov-
ernment is armed with tlie power and means of prevention.
'*A8 regards the prohibitive or i)nnitive law, no difficulty
can arise. It is plain that to satisfy tke exigency of dae dili-
gence, and toesca]>e liability, a neutral government must take
care not only that its municipal law shall prohibit acta contra-
vening neutrality, but that the law shall be upheld by the sanc-
tion of suleqnate punishment — that is to say, of such as may
reasonably be expected to deter persons from ofiending
against it.
*'As regards the preventive law, doubtless a government
shonld be armed by law with power to prevent an infraction
of the law, when it knows or has reasonable ground to believe
that such infraction is about to take place.
*' Hut when we come to the question of the means which by
law should be placed at the disposal of the government, diffi-
culties of a very formidable character immediately present
themselves.
"The more despotic and unlimited the power of a govern-
ment, the more efficacious will be the means at its command
for preventing acts which it is desired to prevent.
" Is tliis Ji reason, in a country where absolute and unlimited
power is unknown, where every power is exercised in subor-
dination to the law, and where, for any interference by the
government with the rights of person or property, redress may
immediately be sought, for investing the executive with an
absolute and irresponsible powt^r, at variance with the whole
tenor and spirit of the national institutions, in order t-o pro-
tect a belligerent from the possibility of injury from a violation
of neutrality?
'^Again, a nation has a system of procedure which is in
harmony with its institutions and with which it is satisfied.
According to that system, persons against whom the law is to
be put in force can not be subjected to be interrogated in order
to establish their criminality. Proof must first be produced,
from which, while it remains unanswered, a presumption of
guilt arises, before they can be called upon for a defense. Be-
cause a different system might be more ertica<*i(ms in enabling
the government to establisli a case for (confiscating a suspecteil
vessel, for the protection of a belligerent, is the legislature
called uj)on to change the law because other nations be(?ome
involved in warf
''Again, the government of a countiy has been carried on
for years according to an established system of official routine.
This system may be somewhat c()mj)licated, and may render
the action of the executive less speedy than it might otherwise
be. Hut it is safe, and has been found to work sufficiently well
in carrying on the affiiirs of the nation at home and abroad.
Hecause a more rapid and a more diretct action on the point to
be reached mijiijht be obtained by a simplification of the official
neutrality: the geneva arbitration. 4077
iiiiu'irmeiy, is a goveniineiit to be lield guilty of iie^lijreiice
because, not foreseeing what was about to happen, it had not
altere<l its ministerial arraufreinents accordingly!
*'A government, in all matters involving legal consideration,
is in the liabit of consulting and acting under the advice of
lawyers specially appointed to advise it. The purpose is the
laudable one of insuring the perfect legality of the proceedings
of the government; but this advantage necessarily involves
some loss of time, during which the action of the executive is
for the moment suspended. Is this pracitice inconsistent with
the diligence required of a neutral governmentf Honestly
intending to do what was right, is it to be held responsible
because a vessel equipped for war has taken advantage of such
a delay, though, perhaps, in the x)articular instance, accident-
ally prolonged!
'^ I can only answer these questions in the negative. I do
so on the ground, as to some of them, that they are things
which no government could reasonably be asked to do; as to
all, that they we?e not such things as a government of ordi-
nary prudence and sagacity, carrying on its aitairs in the usual
way in which the aflairs of governments are carried on, could
have foreseen the necessity of providing for.
" Passing from the law, and the means which the law should
])lace at the disposal of a government to enable it to repress
intende<l violations of neutrality on the part of its subjects,
to the action of the government in the use of such means, it
seems to me that two things are incumbent on a government:
" 1st, That it shall use due diligence to inform itself, by the
use of the means at its disposal, whether a violation of the law
is about to be committed; and,
"2d. That, being satisfied of the fact, it shall use due dili-
gence in applying its means and power of prevention.
" These conditions honestly and bona fide satisfied, no gov-
ernment, as it seems to me, can be held liable for the acts of
its subjects, but such acts must be deemed to be beyond the
reach of any control which it. can reasonably be expected to
exercise.
'' Hut here questions of great importance, and of equal diffi-
culty, ])resent themselves:
" 1. Is a government, intending faithfully to discharge its
duty toward another government, to be held responsible for a
mere error of judgment ? As, lor instance, in thinking a vessel
not liable, in point of law, to seizure, when in fact she was so;
or in thinking the evidence in a particular case insufficient
when it was sufficient.
^'2. Is a governinent wanting in due diligence if it declii es
to seize a vessel at the instance of a belligerent, when properly
satisfied that, though there may be circumstances of a sus-
l)icious character, the only evidence which can be adduced will
not Justify the seizure before the law, and that the vessel will
therefore be released !
4078 INTERNATIONAL ARBITRATIONS.
*'.'>. IJaviiig seized a vessel, and broug:lit the matter before
the proper legal authority, is a government to be held respon-
sible because, through some mistake of the court, either of law
or fact, there has be.en a miscarriage of Justice!
'*4. Is it to be answerable ibr accidental dehij', tbroagh
which an opportunity becomes afforded to a vessel to evade
the eventual decision of the government to seize her?
''5. Is a government to be held responsible for error of
judgment in its subordinate ofhcers, especially when these of-
ficers are at great distance, and not acting under its imme<1iato
control? ]s it, under such circumstances, to be answerable
for tlieir possible negligence, or even for their misconduct?
'*These are matters of infinite importance to neutral nations,
who may be drawn within the vortex of wars in whicli they
have no concern, if they are not only to be harassed »ii<l
troubled by the demands and importunities of jealous and
angry belligerents, but are, in addition, to be held responsible —
to the extent, perhaps, of millions — for errors of judgment,
accidental delay, judicial mistake, or misconduct of subordi-
nate officers, acting not only without their sanction, but possibly
in direct contravention of their orders.
*' We are not inforined whether the two governments have,
in compliance with the pledge contained in the Treaty of
Washington, invited other nations to adopt its rules; but if it
is to be established that these rules carrv with them a liabilitv
so extensive 1 should very much doubt whether such an invi-
tation, if made, would be attended with much success.
*'-Any decision of this tribunal founded on such a liability
would have the effect, 1 should imagine, of making maritime
nations look upcm belligerent i)owers with very considerable
dread.
*'lt is to 00 remembered that a government cannot be La^en
to guarantee the event; in other words, to be answerable at
all hazards and under all circumstances for a breach of neu-
trality by a subject, if it occurs. In spite of the law, and of
the vigorous administration of the law, off'enses will take place,
and neither at home nor abroad can rulers be held, under all
circumstances, answerable to those who suffer from them. All
that can bo expected of the government of a country is that it
shall possess reasonable means to i>revent offenses, and use
such means honestly and diligently for the benefit of those who
are entitled to its protection. The terms of the treaty, which
require no more than ^due diligence,' exclude all notion of an
absolute unconditional responsibility. This is evidently the
meaning of an obsei vation of the British counsel at the close
of the fifth section of his argunumt on *due diligence,' which
the presi<lent of the tribunal appears to have found some diffi-
culty in understanding.
"This being so, 1 have some difliculty in saying that a gov-
ernment acting in good faith, and desiring honestly to fulfill
its obligations, can be held liable for (Trors of judgment, unless,
neutrality: the geneva arbitration. 4079
indeed, these are of so patent a character as to anionnt to
crassa ne<jligentia.
''Prolonged and unnecessary dehiy is, in the very nature of
things, incoinx)atible with diligence. ]5ut delay within reason-
able limits, honestly intended for the investigation of facts or
tho*due consideration of the x)roi)er cour>e to be pursued, is not
so. Delay arising simply from accident ought not to be im-
puted as negligence. Accident can never be made the ground
of an imputation of negligence, though it may found a legal
claim where a i)arty is in mora.
"As regards the seizure of a vessel under the foreign-enlist-
ment act, with a knowledge that the evidence would be insuf-
ficient to Justify it, 1 hold that such a seizure, whether for the
purpose of furthering the ends of a belligerent or because
some su8])icion might attach to the vessel, would have been
unjustifiable both in policy and principle. For no government
can be called upon to institute legal x^roceedings under such
circumstances. Every government prosecution which ends in
failure is, in itself, x>ro<luctive of mischief. It lessens the
authority of the executive by making it ax)pear to have acted
harshly and unjustly, and creates symx>athy, x>erhaps unmerited,
for parties against whom its efforts have been directed and
who have escaped from its pursuit. It imx)airs the anthority
of the law by leading to the belief that it may be infringed
with impunity, thereby holding out encouragement to crime.
A government would be acting in violation of the spirit of the
constitution, as well as against law and right, if it seized a ves-
sel, the property of a subject, unless it believed such vessel to
be justly and legally liable to condemnation on legal and suf-
ficient proof. Moreover, such a x^roceeding would be useless
as well as arbitrary. The government would be unable to defer
indefinitely the decision of the question, but, on the contrary,
would be bound to submit the case to the x)roper tribunal at
the earliest practicable moment. In the case supx>osed, the
result would necessarily be that the vessel must be released
and alloweil to depart unmolested.
''It must be borne in mind that the British Government pos-
sesses no desiK)tic or arbitrary x>ower. It could neither assume
nor exercise such a power, even to x>i'otect a belligerent or
maintain its own neutrality.
'*As regards any mistjarriage of justice in matters within the
sphere of the municix)al law, it apx)ears to me utterly out of the
(juestion to hold that a government, having done what in it
lay, as by seizing a vessel and bringing it x>rox>erly before the
competent court, can be held liable because, through son)e mis-
take or accident, justice may have been defeated.
''A breach of the law having been committed in the eciuix)-
ping or aiming of a vessel for belligerent x>ur poses, all that
the government could do, under the foreign-enlistment act, was
to seize the delincjuent vessel, and bring it into a prox>er court
for ccmdemnation. This done, and the evidence of the facts in
4080 INTERNATIONAL ARBITRATIONS.
such a case having: been submitted by the public i)ro8ecutor to
the court, the functions of the government are ax an end. It
can do no more. Tlie rest is with the law. In England, in
America, in every well constituted and well-regulated state,
the executive and judiciary powers are separated by a bi;j>a<l
and impassuble barrier. There is no authority in the state,
however high, that would venture to interfere wiih the dis-
charge of the judicial oltice. It would be considered a viola-
tion of the most sacred principles, and an outrage on all
proi)riety, to seek to control, or even to intlnence, dircHttly or
indirectly, the decision of a judge, even of the most inferior
tribunal.
*'This being so, the government of a neutral can not justly
or reasonably be held responsible for all the mischief which a
vessel, equipped in violation of its law, may do throughout the
course of. possibly, a protracted war because a suit which it
has properly Instituted fails through a mistake of the judge.
To decide in the affirmative would be to establish a rule
hitherto unknown, and calculated to impose on neutral states
a degree of responsibility altogether unprecedented and un-
heard of.
*'As regards liability for the acts or omissions of subordinate
officers, it seems to me that, while a government may properly
be held responsible for what is done, or omitted to be done, by
its orders or under its own immediate control, it would be most
unreasonable to hold it answerable for the acts or negligences
of subordinates, at all events, unless it afterward ratifies and
adopts what these may have done.
*'In the matter of civil rights, individuals may be liable for
the negligence of those to whom they depute the conduct of
their atfairs; but, considering the complicated machinery of
political government, especially when distant colonies and
dependencies are concerned, and the conseipient necessity of
employing subordinate officers, it would be unreasonable and
unjust to hold that the negligence of a subordinate, more
especially from mere error of judgment, as, for instiince, in
allowing a vessel to take too much coal, was a want of *'duo
diligence" on the part of the government, for which it can
justly be held liable.
^* The following ])assage from the British Counter Ca^e sums
up so well the different sides of this question, that I do not
hesitate to produce it at length:
'' ^ That due diligence requires a government to use all tbe
means in its power is a proposition true in one sense, false in
another; true, if it means that the government is bound to
exert honestly and with reasonable care and activity the means
at its disposal; false, impracticable, and absurd, if it means
that a liability arises whenever it is possible to show that an
hour lias been lost which might linve been gained, or an acci-
dental delay incurred which might, by the utmost foresight,
neutrality: the geneva akbitration. 4081
have been prevented; that an expedient which might have
succeeded has not been tried; that means of obtaining infor-
mation which arc deemed unworthy or improper have not been
resorted to; or that the exertions of an officer or servant of
government have not been taxed to the utmost limit of his
physical cai>acity.
" 'Nor can we fail to observe that, in proportion as we ex-
tend the duty of prevention incumbent on neutral governments,
from hostile enterprises which are open and flagrant to acts of
a mor(^ doubtful character which border on the line betwixt the
lawful and the unlawful, it becomes more and more difticult to
exact from the neutral, in the performance of that duty, pecul-
iar and extraordinary vigilance and activity. The duty of
preventing the o])en assembling within neutral territory of an
armed hostile expedition against a neighboring country is plain
and obvious, and requires only a prompt exercise of adequate
force. But it is otherwise when we come to acts of a difierent
class, the criminality of which depends on a hitent intention;
such, for example, as the mere procuring for billigerent pur-
poses from the yards of a neutral shipbuilder, whose ordinary
business it is to build 8lii]>s of all kinds for customers of all
nations, a vessel with some s|>ecial adaptation for war. There
is nothing in the relation of a neutral to a belligerent to cast
on the former the duty of exercising within his own territory
a constant and minute espionage over ordinary transactions
of commerce lor the protection of the latter. This relation,
always onerous to the neutral, is, at the same time, it must be
remembered, purely involuntary on his i)art. It is forced on
him by the (piarrels of his neighbors in which he has no con-
cern, or by tbeir internal discords when those discords break
out into civil war."'
** While I readily admit that the measure of diligence which
a government applies to the aflairs it has to itdminister, if the
ordinary course of its administration is negligent and imper-
fect, is not necessarily to be taken — any more than it wouhl
be in the case of an individual— as the measure of diligence
which it is to apply in the discharge of international obliga-
tions, yet credit should be given to a government for a properly
diligent discharge of ])ublic duty.
*' Furthermore, if a given law and a particular system of
administration have been fonnd by i)ractical experience suffi-
1 lent to protect the interests of the government in the impor-
tant matter of the ])ublic revenue, and also to insure the
observance of neutral duties on the occasion of all former
wars, surely it is highly unreasonable and unjust to con
demn the whole system as defective, and the government as
negligent, for not having amended it in anticipation of future
events."
* liritisU Counter Cas**, 22.
i
4082 INTERNATIONAL ARBITRATIONS.
The tribunal of arbitration, in its award.
Award of the Tri- . i
, , said :
DunaL
*'The ^diie diligence' referred to in the first
and third of the said rules fof Article VI. of the Treaty of
Washingrton] ought to be exercised by neutral governments in
exact proportion to the risks to which either of the belligerents
may be exposed, from a failure to fulfili the obhgations of neu-
trality on their part. * ♦ * The circumstances out of which
the facts constituting the subject-matter of the present contro-
versy {irose were of a nature to call for the exercise on the i>art
of Her Britannic Majesty's government of all possible solici-
tude for the observance of the rights and the duties involved
in the proclamation of neutrality issued by Her Majesty on the
13th day of May 18G1."
2. DiTY TO Detain an Offending Cruiser when it Re-
turns TO THE !N"EUT11AL'S JURISDICTION, AND THE EF-
FECT OF A Commission on such Cruiser.
Case of the United
States.
^
As to the intimation which had been made
in the correspondence and discussions touch-
ing the Alabama claims, that the power of
Great Britain to interfere with, to arrest, or to detain either
of the belligerent cruisers whose acts were complained of,
ceased when it was commissioned as a man-of-war, the Case of
the United States said :
"The United Stiites might well content themselves with
calling the attention of the tribunal of arbitration to the ut-
ter uselessness of discussing these questions, if the liability to
make compensation lor the wrong can be escaped in such a
frivolous way. It is well known how the several British-built
and British manned cruisers got into the service of the insur-
gents. Few of theiri ever saw the line of the coast of the
Southern insurgent States. The Florida,, indeed, entered the
harbor of Mobile, but she ])assed the blockading squadron as
a British man of-war. In most cases the commissions went
out from England — from a branch ofhco of the insurgent navy
de|)artment, established and maintained in Liverpool at the
cost and expense of the insurgent (so called) government.
From this otiice the sailing orders of the vessels were issued;
here their commanders received their instructions; and hence
they departed to assume their commands and to begin the
work of destruction. They ])layed the comedy of com[)leting
on the high seas what had been <*arried to the verge of com-
pletion in England. The i»arallel is complete between these
commissions and those issued by Genet in 1793, which were
disregarded by the United States at the instance of Great
Britain. If a i)ifcce of paper, emanating through an English
neutrality: the geneva arbitration. 4083
office, from men who hjMl no nationality recognized by Great
Britaiu, and who had no open x>ort into which a vessel could
go unmolested, was potent not only to legalize the depreda-
tions of British built and manned cruisers upon the commerce
of the United States, but also to release the responsibility of
Great Britian therefor, then this arbitration is indeed a farce.
Such, however, can not be the case."*
The United States, said the Case, did not deny the force of
the commission of a man-of-war issuing from a recognized
power,^ nor did they deny that since Great Britain had recog-
nized the existence of a civil war between the United States
and the insurgents, she might, without a violation of the law
of nations, allow such insurgent vessels of war as had not
been built, armed, equipped, furnished, fitted out, supplied, or
manned within her territory, in violation of her duty to the
United States, the same rights of asylum, hospitality, and in-
tercourse which she conceded to the vessels of war of the
United States. But they denied that the receipt of a commis-
sion by a vessel like the Alabama^ or the Florida, or the
Georgia^ or the Shenandoah^ exem])ted Great Britain from lia-
bility growing out of the violation of her neutrality. In sup-
port of this ]>roposition the Case of the United States referred
to the case of the SautiHsima Trinidad, 7 Wheaton, 283, and
the case of the Gran Para, 7 Wheaton, 471.
The British Case maintained the following
The British Case. ])ropositions : •'
^* 7. A vessel becomes a public ship of war by being armed
and commissioned; that is to say, formally invested by order
or under the authority of a government with tlie character of a
ship employed in its naval service and forming part. of its
marine for purposes of war. There are no general rules which
prescribe how, where, or in what form the commissioning must
be eftected, so as to impress on the vessel the character of a
public ship of war. What is essential is that the appointment
of a designated officer to the charge and command of a ship
likewise designated be made by the government, or the proper
department of it, or under authority delegated by the govern-
ment or department, and that the charge and command of the
ship be taken by the officer so appointed. Customarily a ship
is held to be commissioned when a commissioned officer ap-
l)(>inted to her has gone on board of her and hoisted the colors
a])pr()priated to the military marine. A neutral power may
'Papers relatiDg to the Troaty of Wjvshington. I. 84.
'^Schooner Kxcharnje v. McFaddetif 7 Cranch, 110.
=» l*ai)er8 n'hitiiig to the Treaty of Washington, I. 2'M,
5r)27--VOL. 4 54
4084 INTERNATIONAL ARBITRATIONS.
iudeed refuse to admit into its own ports or waters as a pablic
ship of war any belligerent vessel not commissioned in a speci-
fied form or manner, as it may impose on such admission any
other conditions at its pleasure, provided the refusal be ap-
I)lied to both belligerents indifferently; but this should not be
done without reasonable notice.
*'8. The act of commissioning, by which a ship is invested
with the character of a public ship of war, is, for that purpose,
valid and conclusive, notwithstanding that the ship may have
been at the time registered in a foreign country as a ship of
that country, or may have been liable to process at the suit
of a private claimant, or to arrest or forfeiture under the law of
a foreigfu state. The commissioning power, by commissioning
her, incorporates her into its naval force; and by the same
act which withdraws her from the operation of ordinary legal
process assumes the responsibility for all existing claims which
could otherwise have been enforced against her.
The argument of the United States advanced
Azgoment of the ^he following positions : '
United States. ^
^^I. This subject, discussed at some length
in the British Case and Counter Case, may be disposed of by
a few elementary propositions:
'<(a) It is undoubtedly consonant with principle and usage,
that a public armed vessel of a sovereign power should be ac-
corded certain privileges in the ports and waters of other
national jurisdictions not accorded to private vessels. The
substance of these privileges is a limited concession of the
character of continued territoriality of the state to which they
belong, and a consequent exemption from the jurisdiction of
the courts and process of the nation whose ports or waters they
visit. But the same reason which gives support to this immu-
nity throws them under the immediate political treatment of the
hospitable state, as represented by its executive head, in the
conduct of this international, if subordinate, relation. How,
under the circumstances of each case calling for executive
action, the vessels are to be dealt with is determined, in the
first instance, by the government having occasion to exhibit
the treatment. For its decision, and the execution of it» it is
responsible, politically and internationally, and not otherwise,
to the sovereign whose public ships have been so dealt with.
That ordinarily the offense calling for remonstrance or inter-
vention would not be made the subject of immediate and forci-
ble correction, applied to the vessel itself, but would be brought
to the attention of its sovereign for correction or punishment
and apology, or other amends, may be assumed. But alt this
is at the discretion of the power having occasion to exert, con-
trol, seek redress, or exhibit resentment. The tlagrancy or
' Papers rolatiug to the Treiity of Washington, III. l')2. See also, 176,
NEUTRALITY: THE GENEVA ARBITRATION. 4085
urgency of the case may dictate another course, to be justified
to tlie sovereign affected upon such consideratious.
^^{b) When, however, the anomalous vessels of a belligerent
not recognized as a nation or as a sovereign claim a public char-
acter in the port of hospitality, the only possible concession of
such character must, in subtracting them from judicial control,
subject them to immediate political regulation applied to the
vessels themselves. There is behind them no sovereign to be
dealt with, diplomatically or by force. These vessels themselves
X>resent and represent at once whatever theoretical public rela
tion exists or has been accepted. To hold otherwise would
make the vessels wholly lawless and predominant over the
complaisant sovereign, helplessly submissive to the manifold
irresponsibilities the qua^i public vessels assume to themselves.
'*(c) The necessary consequence is that when the offending
vessels of the nonsovereign belligerent have taken the seas
only by defrauding or forcing the neutrality of the nation whose
hospitality they now seek, such nation has the right, and, as
toward the injured nation demanding its action upon the offend-
ing vessels, is under the obligation, to execute its coercive, its
repressive, its punitive control over the vessels themselves. It
can not excuse itself to the injun^d nation for omission or neglect
so to do by exhibiting its resentment against, or extorting re-
dress from, any responsible sovereign behind the vessels; nor
can it resort to such sovereign for indemnity against its own
exposure to reprisals or hostilities, by the injured nation, or for
the cost of averting them.
*' II. Upon these plain principles,it was theclearduty of Great
Britiiiii, in obedience to the international obligations insisted
upon by the treaty, and the supporting principles of the law
of nations invoked by its retjuiremeut, to arrest these offending
vesvsels as they fell under its power, to proscribe them from all
hospitality or asylum, and thus to cut short and redress the
injury against the United States which it had, for want of 'due
diligence' in fulfilling its duty of neutrality, been involved in.
The powerj full and free, to take this course is admitted by the
British Government in its Case and Counter Case. Whatever
motives governed Great Britain in refusing to exercise this
power, such refusal, as toward the United States, is without
justification, and for the continued injuries inflicted by the
offending vessels Great Britain is responsible, and must make
indemnity.''
The effect of commissions on the offending
British Sapplomental i* ^ i • xi n •<.• i. /i ^
. ^^ ^ cruisers was discussed in the British Counter
Aigoment.
Case,' and in the British Argument.^ It was
also discussed in the British Supplemental Argument, in which
' Part 2, pp. 18-20.
-PapiT8 relating to tbo Treaty of Washington, III. 296.
4086 INTERNATIONAL ARBITRATIONS.
the views of Her Majesty's government were deftneil as
follows:^
'* It is contended by the United States that these ships (or
at least such of them as hiid been illegally equipped in British
territory) ought to have been seized and detained, when they
came into British ports, by the British authorities. This argu-
ment depends upon a forced construction of the concluding
words of the first rule, in Article VI. of the Treaty of Wash-
ington, which calls upon the neutral state to ' use due diligence
to prevent the departure from its jurisdiction of any vessel
Intended to cruise or carry on war as above, such vessel having
been specially adapted, in whole or in part, within such juris-
diction, to warlike use.' Does this rule authorize the arbi
trators to treat it as a duty undertaken by (rreat Britain to
seize Onifederate cruisers commissioned as public ships of war
and entering British ports in that character without notice
tliat they would not be received on the same terms as other
public ships of war of a belligerent state, if they were believed
to have been 'specially adai>ted, in whole or in part, within
British jurisdiction, to warlike use?' The negative answer to
this incjuiry results immediately from the natural meaning of
the words of the rule itself, which plainly refer to a departure
from the neutral territory of a vessel which has not at the
time of such departure ceased to be subject, according to the
law of nations, to the neutral jurisdiction j and the cruising and
carrying on war by which still rests in intention and purpose
only, and has not become an accomplished fact, under the
public authority of any belligerent i)ower.
'' If a public ship of war of a belligerent power should enter
neutral waters in contravention of any positive regulation or
prohibition of the neutral sovereign, of which due notice had
been given, she might, according to the law of nations, be
treated as guilty of a hostile act, a violation of neutral terri-
tory; and hostile acts may of course be justifiably repelled by
force. lUit the original equipment and dispatch from neutral
territory of the same ship, when unarmed, whether lawful or
unlawful, was no hostile act; and a foreign i)0wer, which after-
ward receives such a ship into the ])ublic establishment of its
navy, and gives her a new character by a i)ublic commission,
can not be called upon to litigate with the neutral sovereign
any question of the mnnicii)al law of the neutral state to whose
jurisdiction it is in no matter subject. The neutral state may,
if it think fit, give notice (though no authority can be produced
for the proposition that it is under any international obli<:ation
to do so) that it will not allow the entrance of a ])articular
description of vessels, whether commissioned or not, into it«
waters; if it gives no such notice it has no right, by the law
of nations, to assume or exercise any jurisdiction whatever
' PapeiH rt'laliny: to tlio Treaty of Wasliiiii^ion, III. V2C,,
NEUTRALITY: THK GENEVA ARBITRATION. 4087
over any sliij) of war coming into its waters under the flag and
l)ul)lic commission of a recognizeil belligerent. Such a ship,
committing no breach of neutrality while within neutral waters,
is entitled to extraterritorial privileges; no court of justice of
the neutral country can assume jurisdiction over her; the flag
and commission of the belligerent power are conclusive evi-
dence of his title and right; no inquiry can be made, under
such circumstances, into anything connected with her ante-
cedent ownership, character, or history. Such was the decision
(in accordance with well established principles of international
law) of the highest judicial authority in the United States in
1811, in the case of the Exchange^ a ship claimed by American
citizens, in American waters, as their own property, but which,
as she had come in as a public ship of war of France, under
the commission of the first Emperor Napoleon, was held to be
entitled to recognition as such in the waters of the United
States, to the entire exclusion of every proceeding and inquiry
whatever which might tend in any way to deprive her of the
benefit of that privileged character."^
Mr. Evarts, in his Supplemental Argument,
.8 upp e- maintained that while the first clause of the
mental Argpunent.
first rule was by its terms limited to an origi-
nal e(j[uipment or outfit of an oftending vessel, the second clause
was intended to lay down the obligation of detaining in port,
and of preventing the departure of, every such vessel when-
ever it should come within British jurisdiction. The public
shii) of a nation, said Mr. Evarts, received into the ports of
another nation is, as a concession to the sovereigu\s dignity,
exempt from the jurisdiction of the courts and all judicial
process of the nation whose waters it visits. But there is no
concession of extraterritoriality to the extent that the Hovereign
visited is predominated over by the sovereign receiving hospi-
tality to its public vessels. If an offense is committed by such
vessels, or any duty arises in respect of them, the sovereign
visited, at his discretion and under international responsi-
bility, makes it the subject of remonstrance, of resentment, of
reprisal, or of an immediate exertion of force if the circum-
stances seem to exact it. What, then, inquired Mr. Evarts, is
the tenor of the authorities in respect to a public vessel not of a
sovereign, but of a belligerent who has not been recognized as
^Schooner ** Kxchaiuje" v. McFaddcHf 7 Oanch, 116. The British Supple,
mental Arj^iiinent also referred to passages cited at length from Ortolan-
Hantefouilh', Paudo, and other wriiefH in the British Counter Case, pp.
14, ir»; and to Azuni, vol.2 (Paris edition 1805), pp. 314, 315; Bluntschli,
Droit International, artich) 321, p. 18^1, Lardi's French edition.
4088 INTERNATIONAL ARBITRATIONS.
a sovereifj:n f The courts, when Uie (luestion arises as a judicial
one, turn to the political authority, and if that authority has
recognized the belligerency, the vessel is treated as exempt
from judicial process and from the jurisdiction of the courts.
But the vessel remains subject to the control or dominion of
the sovereign whose ports it has visited, and it remains there
under the character of a limited recognition, and not in the
public character of a representative of recognized sovereignty.
As there is no sovereign behind the vessel to whom appeals
can be made, the vessel and its conduct are the only subjects
that can be dealt with ; and there is no rule that carries respect
to belligerent vessels beyond the exemption from jurisdiction
of courts and judicial process. Now, in respect of the vessels
before the tribunal, there was, continued Mr. Evarts, on the
one hand, a clear duty resting ui)on (^reat Britain toward the
United States, and on the other only the supposed obligation
of courtesy or comity toward the offending belligerent, which
could have been terminated at any time at the will of the
neutral sovereign. A subtraction of this courtesy or comity
was all that was necessary to have determined the careers of
the cruisers, all of which drew their origin out of the violated
neutrality of Great Britain, exi)osing that nation to accounta-
bility to the United States for their hostilities. In the propo-
sitions of the British counsel, Mr. Evarts declared that he found
really no objection made to the i)eremptory course which the
United States insisted upon, except that seizing the vessels,
without prenouH notice^ would have been a violation of comity
and decorum, and so far a wrong. This argument seemed, said
Mr. Evarts, to make justice and right, in the greatest respon-
sibilities, yield to mere ceremonial politeness. But, in re-
ality, the acts done in violation of the neutrality of Great
Britain by the oft'ending belligerent, in fitting out hostile ex-
X)editi()ns from British territory, were hostile a<»>ts, such as
destroyed any obligation of courtesy or comity toward the
cruisers. Undoubtedly tlie C(mfederate authorities would not
have h)oked with equal favor ui)on Great Britain if she bad
terminated the career of the cruiscTs by seizing them or ex-
cluded them from her ports. Tliis was, however, a question
between Great Britain and the belligerent that had violated
her neutrality. Having the power and the right, the ques-
tion of courtesy in giving notice was to be determined at the
cost of Great Britain and not of tlie United States. But it
neutrality: the geneva arbitration. 4089
ceased to be a ([uestion of courtesy when tlu' notice had not
been jjiven at all, and when the choice ha<l thus been made
that the cruisers should be i)ennitted to continue their career
unche<;kedJ
At the request of the arbitrators special ar-
BeUiff t p'rt * *^'^"™^"^'*^ were made by counsel on the question
as to the lejjal ettect of the entrance of the
Florida into the port of Mobile, on the resi>onsibility, if any,
of (Ireat Britain for that ship.
Counsel for (Ireat Britain maintained that after the vessel
had been bona fide received into Mobile, as her proper port,
and had there obtained the crew that gave her her capacity to
cruise, a line of separation was drawn between everything
that occurred before she entered that port and everything that
occurred afterward; and tluit, no hostile cruising against the
United States having taken place during the interval between
her leaving Liveri)ool and her entrance into Mobile, Great
Britain had no just cause for afterward refusing to her the
ordinary immunities and privileges of a duly commissioned
ship of war of a belligerent power, and certainly w^as not under
any obligation toward the United States to do so, even if a
different rule would have been a]>plieable to such a ship as the
Alabama^ which was not disi)atche<l for her cruise from any
Confederate port. The offense of the vessel against the British
municipal law was not su(?h an offense by general international
law as to call for or justify war or reprisals against the Con-
federate States, nor such as to iulhere to the ship through all
subsequent circumstances. By analogy to the rules of contra-
band the offense was "deposited'' at Mobile-
Counsel for the United States in reply said that the analogy
to contraband trade, as giving the measure of the endurance
of the responsibility of Great Britain for the hostile expedition
of the Florida, was but a subtle form of the argument that
the outfit of the Florida was but a dealing in contraband
of war, and was to carry no other responsibility than the
law of nations attixed to that dealing. This argument had
been suppressed by the rules of the treaty. As to the arguinent
that the seamen enlisted at Mobile became thereafter the effect-
ive maritime war of the Florida, and that the cruiser and her
warlike and navigable (jualities ^< suffered a sea change," which
' Papers relating to the Treaty of WaHhington. III. 44S-4r>5.
'Papers relating to the Treaty of Washington, III. 541.
4090 INTERNATIONAL ARBITRATIONS.
(iivestetl them of all British character and responsibility,
counsel for the United States said that this reasoning was an
inversion of the proposition, omne principale ad se trahit acces-
soriumj and that, as a matter of fact, the evidence concerning
what happened at Mobile by no means exhibited the crew with
which the Floridaleft Mobile as original enlistments there.*
Count Sclopis, in his opinion, said:*
opinion of Count
sdopiB. '' ^^ ^'® consult the most esteemed authors
on ])ublic international law, and especially two
writers of great weight, whose authority will be denied neither
by America nor by England, namely, Story and Phillimore, we
tind that the privilege, usually accorded to sliips of war, of
being considered as a portion of the state whose flag they carry,
and being thus exempt from all other jurisdiction, was in its
origin a privilege only granted by courtesy. As this privilege
is only derived from the usage of nations, it can be canceled at
any moment without cause for offense being given.
'* The opinion of Story, delivered in the case of the Santissima
Trinidad, and quoted by Phillimore,-' appears to mo decisive:
** ' It may therefore,' he says, 'be justly laid down as a gen-
eral proposition, that all pi^rsons and property within the ter-
ritorial jurisdiction of a sovereign are amenable to the juris-
diction of himself or his courts; and that the exceptions to
this rule are such only as, by common usage and public policy,
have been allowed, in order to preserve the peace and harmony
of nations, and to regulate their intercourse in a manner best
suited to their dignity and rights. It would, indeed, be strange,
if a license, im[)lied by law from the general i>ractice of nations
for the purposes of peace should be construed as a license to do
wrong to the nation itself, ai»d justify the breach of all those
obligations which good faith and friendship, by the same
implication, impose upon those who seek an asylum in our
]>orts
*' Taking these general princi[)les, and above all the eternal
^uics of good sense and the dictates of good faith, ivs our point
of departure, is it possible to admit that a vessel, which has
been fiaudulently built on the territory of a sovereign, in open
contravention of the duties of neutrality which that sovereign
is bound to fulfill, and Avitli the object of privateering on
behalf of one of the belligerents, can, by the simple act of
such belligerent, with a view to escape disasters, be transferred
into a commissioned vessel, and thus, with inii)unity, defy that
same sovereignty against which she had at the outset so
gravely offended f Assuredly not; these changes to the eye,
like the shifting of a scene, these transformations, effected
' raj)er.s rel:itin«j: to the Tniaty of Washington, III. r>l(»,
-Id. IV. GO.
•Int. Law, 3d «'dition, 1. 17S.
neutrality: the geneva arbitration. 4091
with equal audacity and ease, can not be tnken serioualy.
Tlie contravention of which the ship was guilty at the com
uiencement of her career, with respect to the sovereign of the
place where she was built, is not effaced by the operation of
an indecent stratagem. AH the written maxims of reason
revolt against such trickery: Dolus nemini patrocinari debet
Wg must look to the bottom of the matter, and mete out full
justice to the fraud ; phis valet quod agitur qtMtn quod simulate
concipitur. The guilt i;nherent to the vessel will not be purged
even when she has received a comnn'ssion, a commander, and
a tlag from the power who can only profit by the fraud in
flagrant violation of all the rights of neutrality.
"The weighty authority of Story, in the case of the Santis-
sima Trinidad, is generally quoted wilkregard to the question
now raised before us (and 1 have myself quoted him). But I
observe that Story's doctiine, on the respect due to the com-
mission given to a ship by a government, is only a general
tiiesis, on which everybody agrees; it does not directly touch
on the question of the original guilt incurred by a vessel
before her commissioning, and which can not be blotted out
without a disturbance of all the principles which govern the
duties of neutrality.
* -After all, even if precedents could be quoted contrary to
the opinion which I maintain, I should reply that the letter
and spirit of the three rules laid down in the sixth article of
the Treaty of Washington do not allow us to follow the old
ruling.
*' It must be steadily borne in mind that it is a new law, full
of equity and foresight, which we are now to follow.
"It is true that, according to generally accepted ideas, a
sovereign who is no longer willing to grant the privilege of
exterritoriality to the commissioned ships of other x>owers,
must previously give notice to that effect, so that foreign
navies, forewarned, may take their precautions in this respect.
But this does not mean that there may not be exceptions
arising from a certain special train of circumstances, and not
from the simple caprice of the sovereign an<l his government.
Now, it is on the nature of these si)ecial circumstances that
the first rule, laid down in Article VI. of the Treaty of Wash-
ington, s])ecifically rests. The operation of this rule would be
illusory if it could not be applied to vessels subsequently
commissioned. The object in view is to prevent the construc-
tion, arming, and equi]>ping of a vessel, and to prevent her
departure when there is sufficient ground for believing that
she is intended to carry on war on behalf of one of the bellig-
erents; and when probability has become certainty, shall not
the rule be applicable to the direct and palpable consequences
which it originally was intended to x)revent? Can this act, in
vindication of a right which has at the first been obviously
violated, be looked upon as a violation of public goo<l faith and
4092 INTERNATIONAL ARBITRATIONS.
of the la\r of nations in regard to one of the belli^erent^f I
can see no violation of public good faith where tliere is only a
ilag^rant abnse, a manifest contravention of the principles of
neutral duties sanctioned by the foregoing rule.
"The honorable attorney-general, in the memorable spee<-h
which he made in the House of Commons on the 13th of May
1864, In reply to Mr. Baring, formally declared 'that he had
not the least doubt that England had the right, if she thought
lit, to exclude from her ports any particular ship, or class of
ships, if she consiticred that they had violated her neutrality,
but that such power is simply discretiouarj', and should be exer-
cised with a due regard to all the circumstances of the case.'
( Un'ted States Documents, Vol. V., p. 583). Why was not,jkheu,
this right exercised at least with re8]>ect to the vessels which
had flagrantly violated the duties of neutralityt
'* 1 will not follow the argument of the United States in the
distinction it seeks to draw between public ships of recognized
and sovereign nations and the ships belonging to a belligerent
power whose sovereignty is not recognized. The status of
belligerents having been accorded to both parties in America,
it is not necessary to dwell on this question. 1 will say, with
the American Judge Grier, ^foreign nations recognize that
there is war by a proclamation of neutrality.'
*'The tact that a vessel, after having been commissioned,
has been received as a ship of war in the i)orts ot different
j)owers before her entrance into the jmrts of the power whose
neutrality she had originally violated, should not, in my opin-
ion, intluence the recognition of the character of such vessel.
Where the vessel had no liability to answer for, it was natural
that she shcmld be admitted as a ship of war; but circum
stances entirely change when the vessel enters the territorial
waters of the sovereign toward whom she is guilty, of the
sovereign whom she has compromised as regards the other
belligerent. Here her guilty character can not be overlooked;
she may be seized and condemned.
**I think that it is for the interest of all maritime nations
that they should hold to the principles which have Just been
propounded. The number of vessels fraudulently built on neu-
tral territory, with the intention of privateering on behalf of
belligerents, will decrease in proportion as increased severity
is shown toward them, even when they present themselves
under the protection of false pretensions to which they are not
entitled.
*• The powers which signed the Treaty of Washington ex-
press, in this same Article VI., the desire and hope that the
three rules which they have there laid down will be adoptc*d
by the other maritime powers. It must, then, be inferred that
the signing j>ower8 considered these rules as clear, precise, and
applicable to the various cases which are therein contemplate*!.
If, on the contrary, it is to be sux>po8ed that the intention of the
NEUTRALITY: THE GENEVA ARBITRATION. 4093
contracting? parties at Washington was to admit explanations
nnd reservations of these same rules in the sense ^ot not
largely transcending the views of international maritime law
and ])olicy which wonld be likely to commend themselves to
the general interests and intelligence of that poition ot man-
kind,' the advantage of the example given wouhl be entirely
lost. The uncertainty of its interpretation would always en-
danger the stability of the rule.''
Viscount d'ltajubri delivered the following
VlBOoant d'ltajnbd's Qpii^JQI^. 1
Opinion.
"The object of the special question sub-
mitted for the decision of the tribunal of arbitration is, to
determine the extent of the effect which can be attributed to
the commission with which a vessel of war may be provided;
whether that eflfect is the same in the case of a vessel built in
conformity with the laws of neutrality as in that of a vessel
built in violation of those laws ; that is to say, whether the fact
of holding such a commission gives to a vessel built in viola-
tion of the laws of a neutral state the right of requiring of such
state that it should be treated in its ports in the same manner
as any other vessel of war belonging to a belligerent state
and built according to law.
** The question, put in this form, answers itself.
"In fact, a neutral wishing to preserve his neutrality is
bound to abstain from assisting either ot the belligerent par-
ties iu their warlike operations; he is bound faithfully to guard
against vessels of war, destined for the use of one of the bel-
ligerentvS, being built or equipped within his territory; and, ac-
cording to the latter part of the first rule of Article VT. of the
Treaty of Washington, he is bound * also to use due diligence
to prevent the departure from his jurisdiction of any vessel
intended to cruise or carry on war as above, such vessel hav-
ing been specially adapted, in whole or in part, within such
jurisdiction, to warlike use.'
" Such being the duties of a neutral, he has per contra the
right to reijuire the belligerents to respect his territory; and
it is the duty of the belligerents not to commit, within the ter-
ritory of the neutral state, nets contrary to that neutrality.
It is only by a scrupulous observance of this duty that bellig-
erents ac(|uire the indisputable right of exacting from the
neutral perfect impartiality.
" If, then, a vessel, built on neutral territory for the use of a
belligerent, fraudulently, and without the knowledge of the
neutral, conies again within the jurisdiction of the sovereign
whose neutrality it has violated, it ought to be seized and
detained; for it is impossible to allow to such vessel the same
exterritorial rights as are allowed to other belligerent vessels
' I*jip<'r8 relating to the Treaty of VVashiugtoii, IV. 96.
4094 INTERNATIONAL ARBITRATIONS.
of war, built in aecordauce with law and witbout any infraction
of neutrabty. The commission with which such a vessel is
l>rovided is insuflficient to protect her as agahist the neutral
whose neutrality she has violated.
"And bow can the belHgeient complain of the appbeation of
this principle? By seizing or detaining the vessel the neutral
only prevents the belligerent from deriving advantage from
the fraud committed within his territory by the same belliger-
ent; while by not proceeding against a guilty vessel, the neu-
tral justly exposes itself to having its good faith justly called
in question by the other belligerent.
" This principle of seizure, of detention, or at any rate of pre-
liminary notice that a vessel, under such circumstances, will not
be received in the ports of the neutral whose neutrality she lias
violated, is fair and salutary, inasmucli as it is calculated to
prevent comi^lications between neutrals and belligerents, and
to contribute toward freeing neutrals from responsibility by
proving their good faith in the case of a fraud perpetrated
withiii their territory.
" The converse of this principle is repugnant to the moral
sense, for it would be allowing the fraudulent party to derive
benefit from his fraud.
''The rules established by the Empire of Brazil confirm the
principle wliich we have just laid down, for in its regulations
respecting neutrality directions are given —
" '§ 6. Not to ailmit into the ports of the empire a belliger-
ent who has once violated the neutrality; and,
'* '§ 7. To compel vessels which may atteni])t to violate the
neutrality to leave the maritime territory of the empire imme-
diately, without 8upi»lying them with anything whatever.'
''In line, the commission with which a vessel of war maybe
provided has not the power to protect her as against the neu-
tral whose neutrality she has previously violated."
Mr. Staempfli, in liis opinion, said:'
Opinion of Mr.
Staempfli. '* ^- '^^^^ ^*^^^ *^^^^ ^ vessel, built in contra-
vention of the laws of neutrality, escapes and
gets out to sea, does not free that vessel from the responsibility
she has incurred by her violation of neutrality ; she may, there-
fore, be proceeded against if she returns within the jurisdiction
of the injured state. The fact of her havinjj: been transferred
or commissioned in the meanwhile does not annul the viola-
tion committed, unless tlie transfer or coniniissioning, as the
case may be, was a bona fide transaction."
Mr. Adams expressed the folio wingopinion :^
Mr.Adam.'sOpinion. u()^j behalf of Grent TUitain, it is claimed
that the rule is ])erfectly established that a
vessel belonging to any i)Ower recognized iis sovereign, or as a
belligerent, has, in virtue of its commission, a right to claim
PapoFH relatiiijj: to tlic Treaty of \Va.shiii;j:toii, IV. 105 - Id. 146.
NEUTRALITY: THE GENEVA ARBITRATION. 4095
a reception, and the privilege of extraterritoriality, without
regard to its antecedents, in the ports of every neutral power.
" The authorities quoted to sustain this position sustain it
as an established general rule. I see no reason to question it.
" But the question that has been raised in the present con-
troversy is an exceptional one, which is not touched by these
decisions.
"The reception of vessels having an origin exclusively or
even i)artially American, and bearing on their front no evidence
of fraud or violence, does not seem to have been brought into
({uestion in this controversy. Such vessels were the Sumter^
the XashrUle^ the Tallahassee^ the Chicl'amaupa^ etc.
" The cnse is dift'erent in regard to that class of vessels which
derive their origin exclusively from a systematic and fraudu-
lent abuse of the amity of a neutral power, setting at defiance
its laws within its own jurisdiction, and taking advantage of
its forbearance in the hope of involving it the more with its
opponent in a responsibility for tolerating its own misdeeds.
" It admits of no question, in my mind, that the outfit and
equipment of the Florida, the Alabama^ the Georgia,, and the
Shenandoah were each and all made in defiance of the laws of
Great Britain and the injunction of the Queen's proclamation
of neutrality. By this conduct the perpetrators had not only
dearly forfeited all right to consideration, but had subjected
themselves to the i)enaltie8 of malefactors if they ever returned
within the jurisdiction which they had insulted. The right to
exclude vessels from British ports on these grounds, without
regard to their commissions, is distinctly aflirmed by Sir Roun-
dell Palmer, one of the lawyers of the crown during the whole
period in (juestion, and seems to be indubitable. To deny it
wiuild place every sovereign power at the mercy of any ad-
venturous pirate on the ocean who might manage to cover him-
self with the threadbare mantle of the minutest belligerent.
" It is a perfectly well understood principle of law that no cit-
izen of a foreign nation, excepting, perhaps, in certain cases, a
representative clothed with diplomatic privileges, is free from
the obligation of conforming himself to the laws of the country
in which he is residing. If he willfully violates them lie is
subject to the same peualties which are imposed upon native
citizens. Even though not a citizen he is subject in Great
Britain to be tried for quasi treason. If instead of con8i)iring
against the Queen he enters into combinations which involve
the kingdom in complications with foreign i)owers with which
it is at i)eace, he surely can not come forward and jdc^ad the
1 possession of a commission from the authorities of his own
country in his justification. Neither is the commander of a
ship of a foreign power which comes within the harbor of an-
other free from the same general obligation. If he violates
any of the regulations prescribed for his government he is lia-
ble to i)ay the penalty by a withdrawal of his ])riviloges or by
an immediate order of exclu>iou from the port.
4096 INTERNATIONAL ABBITRAT10N8.
"For myself, therefore, I can not see any reason why the
existence of a commission should have stood in the way of a
clear expression by Great Britain of its sense of the indignities
heaped upon Her Majesty's government by the violation of her
laws within her various dominions, continuously persisted in
during the existence of this beUigerent. In my opinion it
would have just itied the seizure and detention of the ofleuding
vessels wherever found within the jurisdiction. But if that
were considered inconsistent with a clear impartiality, it cer-
tainly demanded an entire exclusion from Ber Majesty's ports.
The right to dt^cide such a point rests exclusively with every
sovereign power. But an opportunity was lost for establishing
a sound principle of international maritime intercourse whi«:h
may not soon occur again."
Sir Alexander Cockburn argued that the
r exan er c - commissions issued by the Confederate States
bom's Opinion. *'
being valid the vessels were thereafter entitled
to the privilege of extraterritoriality and were not liable to
seizure. To say that a country whose belligerency had been
recognized, but whose independent nationality had not been
acknowledged, had no rights of sovereignty, and consequently
could not by its commission exclude the right of the local
sovereign to seize one of tlie vessels of war for an infraction
of municipal law would de})rive the recognition of belligerency
of one of its most important consequences to a belligerent gov-
ernment, that of having its arnjed vessels invested with the
privileges conceded to men of war. As to the argument that,
assuniing the commissions to be valid, it was nevertheless the
duty of the government whose neutrality had been violated to
seize the vessels, Sir Alexander Cockburn said it seemed mon-
strous to assert that the neutral was bound to have recourse to
force, and possibly to become involved in war for the benefit of
another belligerent. Nothing short of a breach of neutrality,
according to international law, could Justify a resort to forcible
measures on the part of the neutral as for a violation of his
neutral rights. The ecjuipment of the Florida in England con-
stituted no violation of neutrality by international law, the
vessel not having been armed, or sent out for the present pur-
pose of war. So, her arriving at Green Cay was at the utmost
only a breach of municipal law. And even assuming that a
neutral state would be entitled to seize a vessel, though iirmed
with a commission from a belligerent })ower, by reason of some
offense against its neutrality as a reparation for a wrong done
against itself, how could it possibly be asserted that it was
under any obligation to do so?^
^ Papers rclatAu^ to tUe Treaty of Wasbingtou, IV. 409, et set^.
NEUTRALITY: THE GENEVA ARBITRATION. 4097
On the question iiuder consideration, tbe
Deciaon of the tribunal of arbitration rendered the follow-
Tnbunal. , • . ,
ing decision-: '
*'The eil'ects of a violation of neutrality committed by means
of tbe construction, equipment, and armament of a vessel are
not done away with by any commission which the government
of tlie belligerent power, benefited by the violation of neu-
trality, may afterward have granted to that vessel; and the
ultimate step, by which the offence is completed, cannot be
admissible as a ground for the absolution of the offender, nor
can the consummation of his fraud become the means of estab-
lishing his innocence. The jirivilege of exterritoriality ac-
corded to vessels of war has been admitted into the law of
nations, not as an absolute right, but solely as a proceeding
founded on the principle of courtesy and mutual deference
between different nations, and therefore can never be appealed
to for the protection of acts done in violation of neutrality.
The absence of a previous notice cannot be regarded as a fail-
ure in any consideration required by the law of nations, in
those cases in which a vessel carries with it its own condem-
nation."
3. Supplies of Coal.
It was maintained in the Case of the United States that an
undue indulgence was shown to Confederate cruisers in the
extent to which they were permitted to obtain supplies of coal
in British ports, and that in this way they were enabled to use
those ports as a base of hostile operations against the United
States in violation of the duty defined in the second rule of
the treaty. These allegations were denied in the British Case.
The British Supplemental Argument declared that supplies
of coal in British ports were afforded ecjually and impartially
to both the contending parties; that they were obtiuned, on
the whole, more largely by ships of war of the United States
than by the Confederate cruisers; and that such supplies were
lawful under the principles of international law.-
Mr. Evarts, in his Supplemental Argument,^ and Mr. Waite,
in another special argument,* argued that the permission to
take coal, unless properly restricted, amounted to permitting
the belligerent to make use of the neutral ports as a base of
naval operations, and that the Confederate cruisers were suf-
fered to obtain supplies of coal in British i)orts to facilitate
their belligerent operations.
' ]*!i]»«»rs relating to the Treaty i»f WashingtoD, IV. 50. '* I<1. 458.
na. 111. 433. ' *ia. 513.
4098 INTERNATIONAL ARBITRATIONS.
On this subject Count Sclopis expressed
Opinion of Count .1 /> n * • • 1
sd • the following opinion:'
" I can only treat the question of the supply
and shipment of coal as connected with the use of a base of
naval operations directed against one of the belligerents, or
as a flagrant case of contraband of war.
" I will not say that the simple fact of having allowed a
greater amount of coal than was necessary to enable a vessel
to reach the nearest port of its country constitutes in itself a
sufficient grievance to call for an indemnity. As the rx)rd
Chancellor of England said on the 12th of June 1871, in the
House of Ijords, England and the United States equally hold
the principle that it is no violation of international law to
furnish arms to a belligerent. But if an excessive supply of
coal is connected with other circumstances which show that it
was used as a veritable res hostilis, then there is an infringe-
ment of the second rule of Article VI. of the treaty. It is in
this sense also that the same Lord Chancellor, in the speech
before mentioned, explained the intention of the latter part of
the said rule. Thus, when I see, for example, the Florida and
the Shenandoah choose for their field of action, one, the stretch
of sea between the Bahama Archipelago and Bermuda, to
cruise there at its ease, and the other, Melbourne and liob-
son's Bay, for the purposes, immediately carried out, of going
to the arctic seas, there to attack the whaling vessels, I can
not but regard the supplies of coal in (juantities sufficient for
such purposes as infringements of the second rule of the sixth
article.''
Mr. Adams, in his opinion, said:^
Mr. Adams's Opinion, u xj^^, question of coals was little considered
by writers on the law of nations, and by sov-
ereign powers, until the present (century. It has become one
of the lirst importance, now that the motive power of all ves-
sels is so greatly enhanced by it.
''The effect of tliis ap|)lication of steam power has changed
the character of war on the ocean, and invested with a greatly
preponderant force those nations which i>osses8 most largely
the best ujaterial for it within their own territories and the
greatest number of maritime places over tlie globe where de-
posits may be conveniently i)rovided for their use.
*'lt is needless to ])oint out the su])eri()rity in this respect
of the position of Great Britain. There seems no way of dis-
cussing the (juestion other than througli this example.
"Just in proportion to the.sc advantages is the responsibil-
ity of that country when holding the situation of a neutral in
time of war.
*'The safest course in any critical emergency would be to
' papers rtilatiujj to the Treaty of Wasbin«;ton, IV. 71. * Jtl. 148,
neutrality: the geneva arbitration. 4099
deny altogether to supply the vessels of any of the belliger-
ents, except perhaps when iu positive distress.
^' But such a policy would not fail to be regarded as selfish,
illiberal, and unkind by all belligerents. It would inevitably
lead to the acquisition and establishment of similar positions
for themselves by other maritime i)owers, to be guarded with
equal exclnsiveness, and entailing upon them enormous and
continual expenses to provide against rare emergencies.
"It is not therefore either just or in the interest of other
powers, by exacting severe responsibilities of Great Britain in
time of war, to force her either to deny all supplies, or, as a
lighter risk, to engage herself in war.
^^It is in this sense that I approach the arguments that have
been presented in regard to the supply of coals given by Great
Britain to the insurgent American steamers as forming a base
of operations.
"It must be noted that throughout the war of four years
supplies of coal were furnished liberally at first, and more
scantily afterward, but still indiscriminately, to both bellig-
erents.
"The diflBculty is obvious how to distinguish those cases of
coals given to either of the parties as helping them impartially
to other ports, from those furnished as a base of hostile opera-
tions.
" Unquestionably, Commodore Wilkes, in the Vanderbiltj was
very much aided in continuing his cruise at sea by the supplies
obtained from British sources. Is this to be construed as get-
ting a base of operations!
" it is i)lain that a line must be drawn somewhere, or else no
neutral jjo wer will consent to furnish su])plies to any belligerent
whatever in time of war.
"So far as I am able to find my way out of this dilemma, it
is in this wise :
"The supply of coals to a belligerent involves no responsi-
bility to the neutral, when it is made in response to a demand
presented in good faith, with a single object of satisfying a
legitimate x>urpose openly assigned.
"On the other hand, the same supply does involve a respon-
sibility if it shall in any way be made to appear that the con-
cession was made, either tacitly or by agreement, with a view
to promote or complete the execution of a hostile act.
" Ileuce I per(;«ive no other way to determine the degree of
the responsibility of a neutral in these cases than by an ex-
amination of the evidence to show the intent of the grant in
any specific case. Fraud or falsehood in such a case ])oisons
everything it touches. Even indifi'erence may degenerate into
willful negligence, and that will impose a burden of proof to
excuse it before responsibility can be relieved.
" This is the rule I have endeavored to apply in judging the
nature of the cases complained of in the course of this arbi-
tration."
5627— VOL. 4 55
4100 INTERNATIONAL ARBITRATIONS.
Sir Alexander Cockburn contended that the
Sir Alexander Ckrak- |^pm ((base of naval operations'' had no rela-
Imm's Opinion. ^.^^ ^^ ^^^ ^^^ ^^ ^ ^^^^j ^^^^^^ ^^^^^ ^^^^^
ing against an euemy^s ships, puts into a port, and after
obtaining necessary supplies again pursues her course, but
that it referred to the use of a port or water as a place from
which a fleet or a ship might watch an enemy and sally forth
to attack him, with the possibility of falling back upon the
port or water in question for fresh supplies, or shelter, or a
renewal of operations. The term signified '^a local position
which serves as a point of departure and return in military
operations, and with which a constant connection and commu-
nication can be kept up, and which may be fallen back upon
whenever necessary." *
Mr. Staempfli, in his opinion in the case of
Opinion of Mr. the Sumter, said : »
staempfli.
^'The permission given to the Sumter to
remain and to take in coal at Trinidad does not in itself con-
stitute a sufficient basis for accusing the British authorities of
having failed in the observance of their duties as neutrals;
because this fact can not be considered by itself, since the
Sumter, both before and after that time, was admitted into
the ports of many other states, where it stayed and took in coal,
and it is proved that the last supply she obtained to cross the
Atlantic did not take place in a British port; so that it can
not be held that the port of Trinidad served as a base of oper-
ations for the Sumter J*^
The tribunal of arbitration, in its award.
Beeiiion of the gaid :
Tribunal.
"In order to impart to supplies of coal a
character inconsistent with the second rule, prohibiting the
use of neutral ports or waters as a base of naval operations
for a belligerent, it is necessary that tbe said supplies should
be connected with special circumstances of time, of persons,
or of place, which may combine to give them such character."^
In signing the award, Viscount d'It£yub4
sutementof Vit- ^j^de the following statement:
count d'ltajnM.
''Viscount d'ltajubd, while signing the deci-
sion, remarkSj with regard to the recital concerning the supply
of coals, that he is of opinion tbat every government is free to
furnish to the belligerents more or less of that article.'' *
» Papers relating to the Treaty of Washington, IV. 422.
8 Id. 136. Hd. 50. ^Id. 47.
neutrality: the geneva arbitkation. 4101
It did uot appear that in any case Great Britain was held
responsible for the acts of a vessel in consequence of supplies
of coaL
4. International Law, and not Municipal Law, the
Measure of Neutral Duty.
As has been seen, Article VI. of the Treaty of Washington
provided that the arbitrators should be governed by the three
rules therein agreed upon, and by such principles of interna-
tional law, not inconsistent therewith, as they should deter-
mine to have been applicajble to the case. But while it was
thus agreed that the duties which a neutral is bound to per-
form are not to be measured by municipal law, the question
was much debated as to how far a nation, charged with a fail-
ure to perform its neutral duties, might justify itself by show-
ing that it had employed the means provided by its municipal
law for the fulfillmeut of those duties.
In the case of the United States, the follow-
Case of the United . •. . j. i i
LT ^^S position was taken : >
<< It must be borne in mind, when consider-
ing the municipal laws of Great Britain, that, whether effective
or deficient, they are but machinery to enable the government
to perform the international duties which they recognize, or
which may be incumbent upon it from its position in the family
of nations. The obligation of a neutral state to prevent the
violation of the neutrality of its soil is independent of all in-
terior or local law. The municipal law may and ought to
recognize that obligation ; but it can neither create nor destroy
it, for it is an obligation resulting directly from international
law, which forbids the use of neutral territory for hostile
purpose.
" The local law, indeed, may justly be regarded as evidence,
as far as it goes, of the nation's estimate of its international
duties; but it is not to be taken as the limit of those obliga-
tions in the eye of the law of nations."
Again, the Case of the United States declared that ^<a
neutral is bound to enforce its municipal laws and its execu-
tive proclamations, and that a belligerent has the right to ask
it to do so; and also the right to ask to have the powers
conferred upon the neutral by law increased if found insuf-
ficient." ^
• Papers relating to the Treaty of Washington, I. 47.
« Papers relating to the Treaty of Washington, I. 87.
4102 INTERNATIONAL ARBITRATIONS.
In the Counter Case of Great Britain, the
Britith Connter Case, question was presented as follows: ^
^^ The propositions advanced on the part of
the United States are the following:
'• ' 1. That it is the duty of a neutral to preserve strict and
impartial neutrality as to both belligerents during hostilities.'
"The British Government willingly assents to this proposi-
tion. No one indeed has yet been found to deny that it is the
duty of a neutral power to be neutral ; or that neutrality is, by
its very definition, a condition of impartiality in matters relat-
ing to the war; or to affirm that it is x>ossible to be neutral as
to one of two belligerents without being neutral as to the other.
"'2. That this obligation is independent of municipal law.'
"The British Government accepts this proi>osition also.
"^3. That a neutral is bound to enforce its municipal laws
and its executive proclamations, and that a belligerent has the
right to ask it to do so, and also the right to ask to have the
powers conferred ui)on the neutral by law increased, if found
insufficient.'
"The British Government does not dispute that a belligerent
government may, if it think fit, ask for any of these things.
But that a neutral power is under an international obligation
to comply with the request, or to enforce its municipal laws
and all proclamations or orders issued by the executive govern-
ment, is far from being universally true; it is admissible only
under very material qualifications, which will be presently
stated. Still less can it be admitted to be generally true that
a belligerent power has a right to call upon the neutral state
to make changes in its domestic legislation.
• • • • • # • '
"Her Britannic Majesty's government declares, on the con-
trary, in the most explicit manner, that the law to which it has
submitted its conduct, and by which it has ccmsented to be
tried, is the international law recognized in common by all
civilized states, coupled with the three rules embodied in the
treaty; that this law is to be gathered, not from British stat-
utes or ordinances, but from the general consent of nations,
evidenced by their practice; and tliat the lawsand ordinances
of Great Britain herself can be appealed to only for the single
purpose of proving that her government was armed with suffi-
cient power to discharge ils international duties, and not for
the purpose of extending, any more than of restricting, the
range of those duties."
From the argument of the United States
Argument of the y^^ jj^^y extract the following passages:^
United States. _ _
"(ft) The efforts of the [British] Case and
Counter Case to ascribe to or apportion among the various
departments of national authority, legislative, judicial, and
> PapeiR H'\at\i\g to U\ft Tt^^Xn o^ \V'Aslvvuv;;tt>n, II. 207, 123.
2Id. 111. 141,
neutrality: the geneva arbitration. 4103
executive, principal or salK)rdiiiate, the true measure of obliga-
tion and responsibility, and of fault or failure, in tbe premises,
as among theniselveSj seem wholly valueless. If the sum of the
obligations of Great Britain to the United States was not per-
formed, the nation is in fault wherever, in the functions of the
state or in their exercise, the failure in duty arose.
" (c) So, too, the particular institutions or habits of the people
of Great Britain, or the motives or policy of its government in
respect of commercial freedom, unrestricted activity, maxims
or methods of judicial procedure, limitations of prerogative,
and similar internal arrangements of people and government,
cease to have any efficacy in determining the judgment of this
tribunal upon the fulfillment of, or default in, international
duty. Domestic liberty, however valuable to and in a state,
is not a warrant for international license; nor can its advan-
tages be cherished by government or people at the cost of
foreign nations. Indeed, when a special obligation or particu-
lar motive induces, and in some sense justifies, failure in inter-
national duty, the ofi'ending nation assumes the ne(!essary
amends and reparation to the foreign state. A notable instance
of this is found in the course of the United States toward
Great Britain, when the former had failed in what they ad-
mitted to be their international duty to prevent the outfit of
French privateers by reason of certain special relations to
France. Compensation to Great Britain for injuries by the
offending cruisers was conceded.
" VII. The preceding observations leave the affirmative state-
ment of the obligations resting upon Great Britain to secure
the fulfillment of this international duty to the United States
free from difficulty.
'* (a) These obligations required that all seasonable^ appropri-
ate^ and adequate means to the accomplishment of the end
proposed should be applied and kept in operation by Great
Britain from the first occasion for their exhibition until the
necessity was over.
''(ft) As the situation calling for the discharge of these obli-
gations on the part of Great Britain was not sprung upon it
unawares, but was created by the Queen's proclamation (a meas-
ure of state adopted after deliberation in its own government
and upon conference with another great European power), the
means to meet the duties of the proclaimed neutrality should
at once have been found at the service of the government, or
promi)tly prepared, if deficient, that no space might intervene
between the deliberate assumption of these duties by the gov-
ernment, and a complete accession of power to fulfill them.''
In the British argument the question was
BiitUh Argument stated thus : '
"32. It is absolutely necessary, in considering charges such
as are made against Great Britain by the United States, to
' Papers relating to the Treaty of Wa%h\vk|^toTi,Wl/2l^-'KVI,
4104 INTERNATIONAL ARBITRATIONS.
take iuto account, for some purposes, the laws and institntious
of the nation charged, the powers with which its government
is invested, and its ordinary modes of administrative and
judicial procedure. • ♦ •
^' 33. These considerations in no way affect the principle that
the duties of neutrality are in themselves independent of
municipal law. Those duties are not created by municipal law ;
they can not be abolished or altered by it. But since, in the
discharge of international duties, every nation acts through its
government, and each government is confined within the
sphere of its legal powers, the local law and local institutions
can not be disregarded when the question arises, whether in a
given case a government has sufficient grounds of belief to
proceed upon, and whether it acted with proper diligence.
"34. It was therefore material to show what, at the time
when the acts complained of by the United States are alleged
to have been done, was the state of British law in i*elation to
such matters^ what powers the executive government pos-
sessed; in what modes those powers could be exercised, and
what were the general rules of administrative and judicial pro-
cedure, including those relating to the judicial investigation of
facts and the reception of evidence.
" 35. In reference to this part of the question, the following
propositions, already laid down on the part of Great Britain,
may be repeated here: ,
" In every country where the executive is subject to the laws,
foreign states have a right to expect — ,
'^ (a) That the laws be such as in the exercise of ordinary
foresight might reasonably be deemed adei]uate for the repres-
sion of all acts which the government is under an international
obligation to repress, when properly informed of them;
" (b) That, so far as may be necessary for this purpose, the
laws be enforced and the legal powers of the government ex-
ercised.
" But foreign states have not a right to require, where such
laws exist, that the executive should overstep them in a par-
tiiiular case in order to prevent harm to foreign states or their
citizens; nor that, in order to prevent harm to foreign states
or their citizens, the executive should act against the persons
or property of individuals, unless upon evidence which would
justify it in so acting if the interests to be protected were its
own or those of its own citizens. Nor are the laws or the
mode of judicial or administrative procedure which exist in
one country to be applied as constituting a rule or standard ot
comparison for any other country. Thus, the rules which ex-
ist in Great Britain as to the admission and probative force of
various kinds of testimony, the evidence necessary to be pro-
duced in certain cases, the questions proper to be tried by a
jury, the functions of the executive in regard to the preven-
tion and prosecution of ott'enses, may differ, as the organiza-
tion of the magistrature and the distribution of authority among
central and local offiivi^T^ ^I'sho (i\^^\^f^om those which exist in
NEUTRALITY: THE GENEVA ARBITRATION. 4105
France, Germany, or Italy. Each of these countries has a
right, as well in matters which concern foreign states or their
citizens as in other matters, to administer and enforce its own
laws in its own forum and according to its own rules and
modes of procedure; and foreign states can not justly com-
plain of this unless it can be clearly shown that these rules
and modes of procedure conflict in any particular with natural
justice, or, in other words, with principles commonly acknowl-
edged by civilized natiojis to be of universal obligation.
'^39. It is therefore abundantly clear that no argument
against Great Britain can be founded on any supposed defect
in the foreign-enlistment act.
"40. As to the general powers of the executive government
in Great Britain and the rules of procedure established there,
the following statements have been made on her part to the
arbitrators :
" (a) The executive can not deprive any person, even tem-
porarily, of the possession or enjoyment of property, nor sub-
ject him to bodily restraint, unless by virtue and in exercise of
a power created and conferred on the executive by law.
" (ft) No person can be visited with a forfeiture of property,
nor subjected to any penalty, unless for breach of a law, nor
unless such breach is capable of being proved against him.
'* (c) Under the foreign-enlistment act the government had
no power to seize or detain a ship, unless with a view to subse-
quent condemnation in due course of law, and on the ground
of an infringement of the law sufficient to warrant condem-
nation.
" (d) Before authorizing the condemnation of a suspected
vessel, the law required that the facts alleged against her
should be capable of proof. Open investigation before a court
is the mode appointed by law for sifting all allegations and
distinguishing ascertainable facts from mere rumor. This is
an ordeal which a British Government must always be pre-
pared to encounter if, in the exercise of the powers intrusted
to it, it seizes or interferes with the person or property of any-
one within its jurisdiction. The British Govermnent there-
fore justly held itself entitled and bound, before seizing any
vessel, either to have sufficient proof in its possession or to
have reasonable grounds for believing that it would be forth-
coming before the trial if the case should begin.
" (e) By proof, in an English court of law, is understood the
production of evidence sufficient to create in the mind of the
judge or jury (ad the case may be) a reasonable and deliberate
belief of the truth of the fact to be proved, such as a reason-
able x)erson would be satisfied to act on in any important
concerns of his own. And by evidence is understood the tes-
timony, on oath, as to facts within his or their personal knowl-
edge, of a witness or witnesses produced in open court and
subject to cross-examination.'^
4106 INTERNATIONAL ARBITRATIONS.
In Supplemental Argnments, Sir Boandell
sirEomideUPdiiieft Palmer" for Great Britain, and Mr. Evarts*
Sapplemmtal Ar- ^^j. ^j^^ United States, discussed at length the
prerogative powers of the British crown with
resi)ect to the prevention of hostile acts within the British
realms. It was admitted by Sir Koundell Palmer "that if any-
military or naval expeditions, or any other acts or operations
of war against the United States, in the true and proper sense
of those words, had been attempted within British territory, it
would not have been necessary for the British Government
either to suspend the habeas corpus act or to rely on the
foreign-enlistment act in order to enable it to intercept and
prevent by force such expeditions or such acts or operations of
war. The whole civil police," continued Sir Eoundell Palmer,
'^and the whole naval and military forces of the British crown
would have been lawfully available to the executive govern-
ment, by the common law of the realm, for the prevention of
such proceedings. But the fact is, that nothing of this kind
ever happened or was attempted, during the civil war in the
United States, in Great Britain or in any of the British pos-
sessions, except (in the year 186»U64) in some of the British
North American provinces; and when such attempts were
made in those provinces the powers of the common law were
at once put in force for their repression and were strengthened
by special and extraordinary legislation; nor is any complaint
now made by the Government of the United States of any
want of due diligence on the part of the British North Ameri-
can authorities m that respect. Not only was no military or
naval expedition and no act or operation of war ever attempted
elsewhere within British territory against the United States,
but (unless the arming of the Florida at Green Cay, in the
Bahamas, be an exception) no attempt was ever made in any
other part of the British dominions so much as to equip or
dispatch for the Confederate service any armed vessel, by which
the question whether it had or had not the character of a naval
expedition prohibited by international law might have been
raised."
Mr. Evarts, in reply, said:
Mr. Eyarts's Oral , . . , , ,, /. ,
Argument. "^^* "^^^ ^® undoubtedly part of the common
law of England, as the learned (*ounsel states,
the argument here turns upon nothing else but the old contro-
versy between us, whether these acts were in the nature of
hostile acts J under the condemnation of the law of nations as
such, that ought to have been intercepted by the exercise of
Papers relating to the Treaty of WusbiDgton, III. 399. '- Id. 475.
r
neutrality: the geneva arbitration. 4107
prerogative, or by the i)ower of the crown at common law,
whichever you choose to call it. The object of all the discus-
sion of the learned counsel is continually to bring it back to
the point that within the kingdom of Great Britain the foreign-
enlistment act was the sole authority for action and prevention,
and if these vessels were reasonably proceeded against, under
the requirementsofadministrativeduty in enforcing the foreign-
enlistment act, as against persons and property for confiscation
or for punishnfent, that was all that was necessary or proper.
" Sir Alexander Cockburn. Am I to understand you as a
lawyer to say that it was competent for the authorities at the
port whence such a vessel escaped to order out troops and com-
mand them to fire?
"Mr. EvARTs. That will depend upon the question whether
that was the only way to compel her to an observance.
"Sir Alexander Cockburn. I put the question to you in
the concrete.
"Mr. EvARTS. That would draw me to another subject, viz,
a discussion of the facts. But I will my that it depends upon
whether the act she is engaged in committing comes within the
category of kostile acts.
"Sir Alexander Cockburn. But taking this case, and
laying aside the question of due diligence. The vessel is going
out (if the Mersey. Do you say as a lawyer that she should be
fired upon f
"Mr. EvARTS. Under proper circumstances, yes.
"Sir Alexander Cockburn. But I put the circumstances.
"Mr. EvARTS. You must give me the attending circum-
stances that show such an act of force is necessary to secure
the execution of the public authority. You do not put in the
element that that is the only way to bring such a vessel to. If
you add that element, then I say yes.
"Sir Alexander Cockburn. She is going out of the iwrt.
They know she is trying to escape from the port. Do you, I
again ask — do you as a lawyer say that it would be competent
for the autliorities without a warrant, simply because this is a
violation of the law, to fire on that vessel !
"Mr. BvARTS. Certainly, after the usual preliminaries of hail-
ing her and firing across her bows to bring her to. Finally, if
she insists on proceeding on her way, and thus raises the issue
of escape from the government or forcible arrest by the govern-
ment, you are to fire into her. It becomes a question whether
the government is to surrender to the ship or the ship to the
government. Of course, the lawfulness of this action depends
n\H)n the question whether the act committed is, under the law
of nations, a violation of the neutrality of the territory and a
hostile acty as, it is conceded throughout this argument, the
evasion of an armed ship would be.^
4108 INTERNATIONAL ABBITRATI0N8.
Count Sclopis, in his opinion, said: '
Opinion of Ckinnt
Siiiopia. "I willingly admit ♦ • • that the daties
of the neutral power can not be determined by
the laws which that power may have made in its own interest.
This would be an easy means of eluding positive responsibili-
ties which are recognized by equity and imposed by the law of
nations. There exists between nations a general law, or, if it
is preferred, a common tie, formed by equity and sanctioned
by respect for reciprocal interests. This general law receives
especial development in its application to acts which take place
at sea, where no frontiers are marked out, and where there is
the greater necessity that liberty should be secured by a
common law, without which it would be impossible to defend
one's self by positive guaranties from the most flagrant acts
of injustice. This is what prompted the saying of one who had
been brought up in the habits of servility to say : * The Emperor
is master of the earth, but the law is the mistress of the sea.'
(Dix,lib. l,de Lege Khodia.) I grant, then, the right of the
belligerent to require that the neutral should not shelter bis
responsibility under rules made by himself in his own interest,
and I enter ftilly into the views of Article VI. of the Treaty of
Washington, which simply gives the preference to rules of gen-
eral equity over the provisions of any particular system of leg-
islation, whatever it may be.
"It does not, however, seem to me admissible that a bellig-
erent should be able to require of a neutral that, in order to
fulfill his neutral duties, he should increase his military estab-
lishments or his ordinary system of defense. This would be
an encroachment on the independence of a state, which is not
bound to abdicate a portion of its material sovereignty because
it finds itself involuntarily in a special position with regard to
the belligerent. The neutral may be asked to put the powers
of his government into full activity in order to maintain his
neutrality; he can not reasonably be expected to modify the
organization of his administrative machinery to serve the inter-
ests of another power.
" We must beware of rendering the condition of neutrals
too difficult and almost impossible. The im])ortance of cir-
cumscribing war is a matter of continual remark, and if neu-
trals are to be overwhelmed with a burden of precautions and
a weight of responsibility which is in excess of the interest
they have to remain neutral, they will be forced to take an
active part in the war; instead of a proper inaction we should
have an increase of hostilities. There will no longer be any
medii between combatants; the disasters of war will be multi-
plied, and the part of mediators, which neutrals have often
undertaken and brought to a successful conclusion, will for-
ever disappear.^
' Papers relating to the Tro.it y of Washington, IV. 59.
NEUTRALITY: THE GENEVA ARBITRATION. 4109
% Mr. Staempfli, in his opinioD, said: *
Opinion. "The laws of a state touching neatrahty do
not constitute an element of the law of nations
in the sense that they can not, at any time, be altered, modi-
fied, or added to without the cooperation or consent of other
states, the law of nations itself being absolutely independent
of these municipal laws; yet, so long as there exist such laws
in a state, and they have not been abrogated, belligerent
states have the right to require their loyal observance, as other-
wise frauds or errors might be committed, to the detriment of
one or other of the belligerents; as, for instance, when there
is known to exist (although no attention may be paid to it) a
decree forbidding a belligerent vessel of war to remain in a
port for more than twenty-four hours, or to take on board more
coal than is necessary for lier to reach the nearest port of her
country, or to obtain fresh supplies in the same i>ort within
three months.
"This principle, at the same time, implies that the absence
of all municipal laws, or the want of sufficient laws on the
subject, does not, in any way, detract from the law of nations
either as regards international obligations or rights."
Award of the Tri- The award of the tribunal of arbitration
inmai* declared : '
"The government of Her Britannic Majesty can not justify
it^f for a failure in due diligence on the plea of insufficiency
of the legal means of action which it possessed."
5. ENaLiSH Feeling toward the United States, and
Toleration of Confederate Operations in Engk
LAND.
As has been seen, it was maintained in the Oase of the
United States that the feelings of the authorities in England
were unfriendly to the United States, and that in consequence
Confederate operations were tolerated.
^ ^ ^ Touching this point, Count Sclopis said : ^
Opinion of Connt e» f j i
Soiopii. "The British Government was fully in-
formed that the Confederates had established
in England a branch of their means of attack and defense
against the United States. Commissioners representing the
government of Richmond were domiciled in London, and had
put themselves in communication with the English Govern-
ment. Lord Russell had received these Confederate represent-
atives in an unofficial way. The first visit took place on the
11th of May 1861 — ^that is to say, three days before the Queen's
* Pftl)er8 relating to the Treaty of Washington, IV. 104.
nd. IV. 51. aid. IV. 9.
4110 INTEBNATIONAL ARBITRATIONS.
proclamation of neutrality, and four days before Mr. Adaws
arrived in London as tbe minister of the United States. And
further, the English Government could not but know that great
commercial houses were managing the interests of the Confed-
erates at Liverpool, a town which, fronr that time, was very
openly pronounced in favor of the South. In Parliament itself
opinions were before long openly expressed in favor of the in-
surgents. The Queen's ministers themselves did not disguise
that in their opinion it would be very difficult for the American
Union to reestablish itself as before. ♦ ♦ ♦ It results from
this, in my opinion, that the English Government found itself,
during the first years of tbe war of secession, in the midst of
circumstances which could not but have an influence, if not
directly upon itself, at least npon a part of the i>opulation sub-
ject to the British Crown. No government is safe against cer-
tain waves of public opinion, which it cannot master at its will.
I am far from thinking that tbe animus of the English Govern-
ment was hostile to the Federal Government during tbe war.
Yet there were grave dangers for tbe United States in Great
Britain and her colonies which there were no direct means for
averting. England therefore should have fulfilled her duties
as a neutral by the exercise of a diligence equal to the gravity
of the danger. * » * It can not be denied that there were
moments when its watchfulness seemed to fail and when fee-
bleness in certain branches of the public service resulted in
great detriment to the United States.^
In a passage in his opinion on the effect of
Tfflta^ m!** ^ commission, Viscount d'ltajubd said: "By
seizing or detaining the vessel the neutral only
•prevents the belligerent from deriving advantage from the
fraud committed within his territory by the same belligerent;
while, by not proceeding against a guilty vessel, tbe neutral
justly exposes itself to having its good faith justly called in
question by the other belligerent." * Viscount d'ltajubd, how-
ever, expressed no opinion as to the state of feeling in England.
Mr. Staempfli, in one of his opinions, said'
stae flL ^^^^ ^^® cases and documents put in by the
two powers contained "a quantity of facts
which should not be taken into consideration in the judgment
to be pronounced by the tribunal," and among such facts be
specified *' expressions of sympathy or antipathy during tbe
war, individual speeches in or out of Parliament or other
official assemblies, the attitude of the press, etc." The facts
to be taken into consideration were, he said, "only the acts
* Papers relating to the Treaty of Washington, 97-98.
'' Id. 106.
NEUTRALITY: THE GENEVA ARBITRATION. 4111
and omissions of Great Britaiu with regard to each of the ves-
sels which form the subject of complaint on the part of the
United States."*
Mr. Adams in several places referred to evi-
^; . dences of feeling on the part of local authori-
ties, as an explanation of their omission to
take or to enforce legal proceedings against the operations
of Confederate agents. As to the attitude of the British
Government itself, he declared that in the earlier part of the
conflict that government " considered it no part of its duty
to originate any proceedings tending to prevention," or " to
pass at all beyond the range of investigation especially pointed
out by the agents of the American Government to its atten-
tion." ^< At a later stage of the difficulties," said Mr. Adams,
^'this policy appears to have been partially changed. The
favorable efiects of it are claimed as a merit in a portion of
the papers before us, and I am ready, at any and all proper
times, to testify to my sense of its efficiency and value wher-
ever it is shown. But after close examination I fail to see
any traces of this policy in the present instance."
These statements were made by Mr. Adams in his opinion
in the case of the Florida.^ Further on, in the same opinion,
he referred to the conduct of Captain Hickley, of Her Majesty's
ship Oreyhoundy in putting an officer temporarily in charge of
the Florida at Nassau and recommending her seizure, and in
this relation said : ^
^< The information of the act of Captain Hickley was trans-
mitted to the government at London, and received the appro-
bation of Earl Eussell. Indeed^ there is a degree of heartiness
in the terms he uses to express it, and in his anxiety to see the
officer properly secured from any hazard to himself by reason
of his course, that clearly shows the earnestness of his satis-
faction. I hope I may not be exceeding my just limits if I seize
this occasion to do a simple act of justice to that eminent
statesman. Much as 1 may see cause to differ with him in his
limited construction of his own duty, or in the views which
appear in these papers to have been taken by him of the policy
proper to be pursued by Her Majesty's government, I am far
from drawing any inferences from them to the effect that he
was actuated in any way by motives of ill-will to the United
States, or, indeed, by un wort hy motives of any kind. If I were
permitted to judge from a calm comparison of the relative
1 Papers relating to the Treaty of Washington, IV. 106, 107.
2 Id. 158. 3 Id. 162.
4112 INTERNATIONAL ARBITRATIONS.
weight or bis various opinions with his action in different
contingencies, I should be led rather to infer a balance of
good- will than of hostility to the United States."
Sir Alexander Gockburn argued at great
^^^d* or!^ii^r*^" ^®°€f^^ *^^ ^^*^ much vehemence against the
charge of unmendliness/
6. Damages.
The tribunal of arbitration awarded to the United States
the gross sum of $15,500,000 in gold. As this amount was
ai*rived at to some extent by mutual concessions,^ it is not pos-
sible to state with absolute certainty all the items that entered
into it, but there were certain principles that were explicitly
decided, and there are certain other matters as to which it is
possible to form reasonable conjectures.
In the Case of the United States the Amer-
"* °«. / ^ ican claims were stated as follows : ^
States.
1. The claims for direct losses growing out
of the destruction of vessels and their cargoes by the insur-
gent cruisers.
2. The national expenditures in the pursuit of those cruisers.
3. The loss in the transfer of the American commercial
marine to the British flag.
4. The enhanced payments of insurance.
5. The prolongation of the war and the addition of a large
sum to the cost of the war and the suppression of the rebellion.
The claims for direct losses were subdivided as follows: ^
1. Claims for the destruction of vessels and property of the
Government of the United States.
2. Claims for the destruction of vessels and property under
the flag of the United States.
3. Claims for damages or injuries to persons, growing out of
the destruction of each class of vessels.
As is elsewhere shown,'^ there arose, after
Kxduriwi of the In- ^^^ presentation of the Case of the United
direct Claims. _, ^ , . ,. .
States, a controversy as to the jurisdiction of
the tribunal of arbitration in respect of the third, fourth,
and fifth classes of claims, which came to be known as the
^^udirect claims." The United States maintained that the
* Papers relating to the Treaty of WashiugtoD, IV. 313, et eeq.
« Id. 8. * Id. 186.
» Id. 185. ^ Supra, Chapter XIV.
neutrality: the geneva arbitration. 4113
tribunal had jurisdiction of these claims; Great Britain denied
it. On the 19th of June 1872, while an application of the
agent of Great Britain was pending for an a^ournment of
the tribunal till the two governments might conclude a sup-
plementary convention on the subject, Count Sclopis read, in
behalf of all the arbitrators, the following statement:^
^< The application of the agent of Her Britannic Majesty's
government being now before the arbitrators, the president of
the tribunal (Count Sclopis) proposes to make the following
communication on the part of the arbitrators to the parties
interested :
<^ The arbitrators wish it to be understood that in the obser-
vations which they are about to make they have in view solely
the application of the agent of Her Britannic Majesty's gov-
ernment, which is now before them, for an adjournment, which
might be prolonged till the month of February in next year;
and the motives for that application, viz, the difference of
opinion which exists between Her Britannic Majesty's govern-
ment and the Government of the United States as to the com-
petency of the tribunal, under the Treaty of Washington, to
deal with the claims advanced in the case of the United States
in respect of losses under the several heads of— 1st, ^the losses
in the transfer of the American commercial marine to the
British flag;' 2d, ^the enhanced payments of insurance;' and
3d, ' the prolongation of the war, and the addition of a large
sum to the cost of the war and the suppression of the rebel-
lion;' and the hope^ which Her Britannic Majesty's government
does not abandon, that if sufficient time were given for that
purpose a solution of the difficulty which has thus arisen, by
the negotiation of a supplementary convention between the
two governments, might be found practicable.
'* The arbitrators do not propose to express or imply any
opinion upon the point thus in difference between the two
governments as to the interpretation or effect of the treaty;
but it seems to them obvious that the substantial object of the
adjournment must be to give the two governments an oppor-
tunity of determining whether the claims in question shall or
shall not be submitted to the decision of the arbitrators, and
that any difference between the two governments on this ])oint
may make the adjournment unproductive of any useful effect,
and, after a delay of many months, during which both nations
may be kept in a state of painful suspense, may end in a result
which, it is to be presumed, both governments would equally
deplore, that of making this arbitration wholly abortive. This
being so, the arbitrators think it right to state that, after the
most carefid perusal of all that has been urged on the part of
the Government of the United States in respect of these
claims, they have arrived, individually and collectively, at the
^ Papers relating to the Treaty of V^ashington, IV. 19.
4114 INTERNATIONAL ARBITRATIONS.
couclasioQ that these claims do not constitute, apon the prin-
ciples of interuatioual law applicable to such cases, good
foundation for an award of compensation or computation of
damages between nations, and should, upon such principles,
be wholly excluded from the consideration of the tribunal in
making its award, even if there were no disagreement between
the two governments as to the competency of the tribunal to
decide thereon.
*' With a view to the settlement of the other claims to the
consideration of which by the tribunal no exception has been
taken on the part of Her Britannic Majesty's government, the
arbitrators have thought it desirable to lay before the parties
this expression of the views they have formed upon the ques-
tion of public law involved, in order that after this declaration
by the tribunal it may be considered by the Government of the
United States whether any course can be adopted respecting
the first mentioned claims which would relieve the tribunal
from the necessity of deciding upon the present application of
Her Britannic Majesty's government."
On the 25th of June, Mr. Davis, the agent of the United
States, made the following announcement:^
" The declaration made by the tribunal, individually and
collectively, respecting the claims presented by the United
States for the award of the tribunal for — 1st, ' the losses in
the transfer of the American commercial marine to the British
flag;' 2d, *the enhanced payments of insurance;' and 3d, *the
prolongation of the war and the addition of a large sum to the
cost of the war and the supressionof tlie rebellion,' is accepted
by the President of the United Statt^s as determinative of
their judgment upon the important question of public law
involved.
*' The agent of the United States is authorized to say that,
consequently, the above-mentioned claims will not be further
insisted upon before the tribunal of the United States, and
may be excluded from all consideration in any award that may
be made."
On the 27th of June, Lord Tenterden read the following
statement:^
"The undersigned, agent of Her Britannic Majesty, is
authorized by Her Majesty's government to state that Her
Majesty's government tind in the communication on the part
of the arbitrators, recorded in the protocol of their proceed-
ings of the 19th instant, nothintr to which they can not assent,
consistently with the view of the interpretation and effect of
the Treaty of Washington hitherto maintained by them; and
1 Papers relating to the Treaty of Washiugtuu, 1\'. 21,
2 Id. 21.
keutrality: the geneva arbitration. 4115
being informed of the Htatement made on the 25th instant by
the agent of the United States, that the several claims par-
ticularly mentioned in that statement will not be Airther
insisted upon before the tribunal by the United States, and
may be excluded from all consideration in any award that may
be made; and assuming that the arbitrators will, upon such
statement, think tit now to declare that the said several claims
are, and from henceforth will be, wholly excluded from their
consideration, and will embody such declaration in their pro-
tocol of this day's proceedings; they have instructed the
undersigned, upon this being done, to recjuest leave to with-
draw the application made by him to the tribunal on the 15th
instant for such an adjournment as might enable a supple-
mentary convention to be concluded and ratified between the
high contracting parties; and to request leave to deliver the
printed argument, now in the hands of the undersigned, which
has been prepared on the part of Her Britannic Majesty's
government under the fifth article of the treaty with reference
to the other claims, to the consideration of which by the tri-
bunal no exception has been taken on the part of Her Majesty's
government."
The declaraton of the arbitrators, accepted thus by both gov-
ernments, disposed of the indirect claims, leaving only the claims
for direct losses growing out of the destruction of vessels and
their cargoes, and the national expenditures in the pursuit of
the cruisers, for the consideration of the tribunal.
As to the national expenditures in pursuit
^T^^^^^ of the cruisers, the tribunal, by a majority of
' 3 to 2, Mr. Adams and Mr. Staempfli voting
in the negative, decided that such expenditures were not
properly distinguishable from the general expenses of the war
carried on by the United States.^
This decision left only the claims for direct losses growing
out of the destruction of vessels and their cargoes as a proper
subject for an award of damages. Upon these claims various
questions arose as to the values of the various vessels and
cargoes, as to the allowance of prospective profits, especially
of whalers, as to freights, as to double claims, and as to the
allowance of interest.^
* Papers relating to the Treaty of Washington, IV. 43, 53.
^As to damages^ see papers relating to the Treaty of Washington^ II.
378, 392; III. 186, 212. 248-254, 315, 579; IV. 36-46. As to interest, see Id.
II. 391; III. 220, 550, 568; IV. 43-46.
5G27— VOL. 4 m
4116 INTERNATIONAL ARBITRATIONS.
At their sessiou of the 29th of Aagast 1872,
Protpeetlye Profits, the arbitrators unanimously decided to reject
claims for prospective profits, reserving, how-
ever, the questions as to the wages of the whalers and the
interest on the value of the vessels and their outfit.^
As to claims for freight, the tribunal nnan
Freights. imously decided not to admit the gross freight,
but only the net freight.^
At its sessiou of the 30th of August, the tri-
DonUe Claims, bunal unanimously declared that the ^'double
claims" should be dismissed. These were in
the main cases in which the owner of the property destroyed
and the insurer had each put in a claim for its value.'
At the session of the 2d of September, the
Interest arbitrators by a majority of 4 to 1 decided
that interest should be allowed as an element
in the award of a sum in gross.'
At the same session Mr. Staempili presented,
E ti *^ " '^^ ^^^® request of the arbitrators, a synoptical
table which he had prepared with reference to
the award of a gross sum. This table was as follows:
Estimate of Mr. Staempjiifor the determination of a t(um in grosn.
i i^rr,.t". »"«!•!-"-■
can tjiblu.
auoc.
Mean.
Amount of claims $14,437,000 ' $7,074,000
Expenditure in pursuit | 6, 735, 000 ; 940. 0U«
I
Prospective profitn and interruption of voy-
age 4,009,100
$10, 905. 000
Struck out.
Struck out as
such, but for
wages 588,000
25 percent on
th«' valuert of
vesHels 400,000
11,893.000
Round sum $12, 000, 000
Interest from the 1st January 1864 to the 15th September 1872,
1. At 5 per cent during eight years and eight and
one-half mouths *. 8 v $600. 000 — $4, 800, 000
8^ X 50, 000 = 425. 000
$5. 225. 000
17, 225. 000
Eventually one year's interest more 17, 825. 0(.K)
'Papers relating to the Treaty of Wasliinjjtou, IV. 43.
2 Ibid. ad. 44.
NEUTRALITY: THE GENEVA ARBITRATION. 4117
Interest from the Ist January 186-1 to the 15th September 187S — Continued.
2. At 6 per cent during eight yoari) and eight and
one-half months 8 x $720, 000 = $5, 760, 000
8| X 60, 000 L^ 510, 000
♦^L^?©, WO
18^270,000
Eventually oneyear'a interent more 18,990,000
3. A-t 7 per cent daring eight years and eight and
one half months 8 X $840, 000 = $6, 720, 000
8|X 70,000= 595,000
7. 315, OOP
19, 315, 000
Eventually one year's interest more 840, 000
20, 155, 000
Bound sum 20.000,000
Sir Alexander GockburD, as one of the arbi-
Sir Alexander Cock- trators, then presented the following memo-
'B emoran- pg^^^jm^ ^^ ^[^^ Staempttl's estimate:
dam. -^
"The figures in Mr. Staempfli's paper require
some material corrections, as to which, as soon as they are
pointed out, there can be no doubt.
''The total claim by the United States of $14,437,000 will be
found, on an inspection of the United States tables, to include
the following amounts:
''a. All the double claims, without exception, notwithstand-
ing the clear expression of opinion on the ])art of the tribunal
that they were to be struck out. These double claims amount
to $1,682,243.
•'6. The gross fi eights of the merchant vessels, amounting
to $1,007,153. as to which the tribunal has decided that at the
utmost only half— that is to say, $ "i03,57() — should be allowed.
" c. The new claim of $1,450,000, advanced for the first time
on the 10th of August last, as to which claim Mr. Staempfii
declared he would exclude it from consideration. It is impor
tant to observe that this new claim comprises over and above
the entirely unsupported claims for siiares of vessels, and for
additional personal effects, the claims for wages extending
over very long and varying periods. The t' ibunal lias decided
that one year's wages in respect of the whalers are to be al-
lowed in lieu of prospective catch. For this one year's wages
Mr. Staemptli has made a separate allowan<;e of $588,000 (an al-
lowance which can be shown to be excessive by at least $88,000),
and he has theretore included in his calculation the claim for
wages twice over.
*' It is therefore clear that Mr. Staempfii, while he excludes
some of the items of claim which the trii)unal has disallowed,
has omitted to strike out the other items, against which the
tribunal lias pronounced its opinion; but it is equally clear
that all the disallowed items must be excluded before a com-
parison can be fairly or usefully made between the United
States claim and the British estimate.
4118 INTERNATIONAL ARBITRATIONS.
" It is necessary, therefore, in the first place, to deduct from
the United States claim the three amounts specified in para-
graphs a, fc, and c, respectively, which will leave, as is shown
by the annexed table, a properly reduced claim of $10,801,324,
as against the British estimate of $7,465,764, if the diifereuce
between paper and gold currency be for the present purpose
disregarded.
*^ It must, however, be carefully borne in mind that the claim
of $10,801,324 includes the following items:
"1. A claim for $659^021 for necured earnings^ which ought
beyond a doubt to be reduced by an amount equivalent to the
wear and tear of the whalers and their outfits, and the con-
'sumption of stores, which must have taken place before these
earnings could be secured, and for which a deduction should
be made, inasmuch as the full original values of the vessels
and their outfits have been allowed.
'* 2. The claims in respect of the mercliant vessels, — These are
valued in the United States tables at more than $60 per tou
on the average, although, according to the well-known otticial
report presented to Congress in 1870, the cost of a first class
perfectly new American vessel, made ready for sea, did not
average that amount per ton, and although, according to the
same report, the average value of American vessels engaged
in the foreign trade was, in 1861, only $11, and has been since
only $45 per ton,
** 3, The claims in respect of cargoes^ the ifisuranceSj commis-
sions, and profits of the same, which profits are sometimes
claimed at the rate of twenty, fifty, and even one hundred per
cent. The various important considerations mentioned at page
13 of the British report, and the fact that numerous claims for
cargoes, presented for the first time in April last, are unsup-
ported by any vouchers, bills of lading, or like documents, un-
doubtedly re(iuire that a very considerable reduction should be
made under this head.
" 4. Several large cUiims not supported hy any affidavit or dec-
laration on oath,
*' 5. Numerous clearly extravagant claims si)ecified in the Brit-
ish reports, such as the claim of $7,00(1 by a liarpooner for per-
sona) injuries; the claim, by a passenger, of * 10,000 for loss
of office as consul; all the numerous claims by the masters of
whalers for wages, sometimes at the rate of $15,000 or $20,000
a year, and which are, of course, superseded by Mr. Staempfli's
allowance of $588,003; and many other equally exorbitant
claims, more particularly specified in the British reports.
"From these considerations it is manifest that more than
ample justice will be done to the United States by taking a
mean between the claim of $10,301,324 and the British esti-
mate of $7,464,761, and by adding thereto the allowance of
$588,000 in lieu of prospective catch.
" Mr. Staempfli has also added, for some unknown reason, 25
per cent on the values of the whalers, an addition which can
NEUTRALITY: THE GENEVA ARBITRATION. 4119
be easily shown to be equivalent to altogether allowing over
and above the original values of the whalers and their outfits
a percentage exceeding 90 per cent, and this although the
question of interest is still left open to the decision of the tri-
bunal.
'^Admitting, however, this extraordinary addition of 25 per
cent, and the excessive estimate of the wages, it is shown by
the annexed table that if Mr. Staempdi's figures be properly
corrected, the estimate would scarcely exceed $10,000,000, even
without any allowance being made for the great difference be-
tween the values of the paper and the gold currency.
'^ Mr. Staempfii's calculations of interest (supposing interest
to be allowed) are made at the alternative rates of 5, 6, and 7
per cent, for the period of eight and one-half years, from the
Ist of January 1804 to the 15th of September 1872.
" But to this he proposes to add another year's interest for
the period of delay in payment after the date of the award
which is allowed by the treaty.
**The tribunal has no power, under the treaty, to award
payment of a gross sum with interest. The amount awarded
is to be paid without interest, and if the tribunal were to add
a year's interest to the gross sum which they would otherwise
award, in respect of the year allowed for payment by the
treaty, they would be doing indirectly what they have no
authority to do directly, and would (it is submitted) be con-
travening the true intent of the treaty, and charging interest
where it was the intention of the treaty that interest should
not be paid.
"This is the more objectionable beciiuse it is proposed to
charge a whole year's interest at either 5, 6, or 7 per cent,
whereas the British Government has the option, under the
treaty, to pay the sum awarded at any time within the year
allowed for that purpose, and might certainly raise the money
(if that operation were necessary) at a considerably lower rate
of interest than 5 per cent.''
Table in reference to the estimate of Mr, Staempfli.
Total United Staten claim in the last revised tables $14,437,143
Necehsary reductions to be made from the above supposed total :
Double claims : $1,682,243
New claims 1,450,000
One-half gross freight 503,576
3,635.819
Making the total reduced claim 10.801,324
As against the British estimate of 7,464,761
The moan of these two sums is 9, 133, 044
Add to thii» Mr. Staempfli's allowances in lieu of prospective catch :
One year's wa j:e« $588, 000
Tweiity*flye per cent on the values of vessels 400,000
988,000
10,121,044
4120 IN^rERNATIONAL ARBITRATIONS.
After a detailed deliberation, the tribniial,
^^L^^* by a majority of 4 to 1, Sir Alexander Oock-
burn dissenting, decided to award in gross
the sum of $15,500,000, to be paid in gold by Great Britain to
the United States.
The formal award, in relation to damages, was as follows : ^
"And whereas, so tar as relates to the particulars of the
indemnity claimed by the United States, the costs of pursuit
of the Confederate cruisers are not, in the Judgment of the
tribunal, ])roperly distinguishable from the general expenses
of the war carried on by the United States:
"The tribunal is, therefore, of opinion, by a majority of
three to two voices —
'^ That there is no ground for awarding to the United States
any sum by way of indemnity under this head.
*'And whereas prospective earnings can not properly be
made the subject of compensation, inasmuch as they depend
in their nature upon future and uncertain contingencies:
" The tribunal is unanimously of o])inion —
"That there is no ground for awarding to the United States
any sum by way of indemnity under this head.
"And whereas, in order to arrive at an equitable compensa-
tion for the damages which have been sustained, it is neces-
sary to set aside all double claims for the same losses, and all
claims for ' gross freights,^ so far as they exceed Miet freights;'
"And whereas it is just and reasonable to allow interest at
a reasonable rate;
"And whereas, in accordance with the spirit and letter of
the Treaty of Washington, it is preferable to adopt the form
of adjudication of a sum in gross, rather than to refer the sub-
ject of compensation for further discussion and deliberation to
a board of assessors, as provided by Article X. of the said
treaty :
"The tribunal, making use of the authority conferred upon
it by Article Vli. ot the said treaty, by a majority of four
voi<'es to one, awards to the United States a sum of $15,500,000
in gold, as tlie indemnity to be i)ai(l by Great Britain to the
United States, for the satisfaction of all the claims referred to
the consideration of the tribunal, coniformably to the provisions
contained in Article VII. of the aforesaid treaty."
7. Decisions as to Particular Orthsbbs.
We now proceed to set forth the discussions, opinions, and
decisions in respect of each cruiser before the tribunal. In the
American Case claims were made not only on account of the
Florida J the Alabama, the Geor<jia, and the Shenandoah j which
originally proceeded from British jujrts, but also on account of
^ PapeTB Te\i\t\\\g to W\<i 'V\?^\\\'5 oC Washington, IV. 53.
NEUTRALITY: THE GENEVA ARBITRATION. 4121
the ycuthvillej the Sumter jS^ud other vessels, which were alleged
to have used British ports as bases of supplies. The British
Case and Counter Case maintained that the submission under
the treaty was limited to the four vessels first above named.
The tribunal, however, considered all the claims presented,
and decided them on their merits. Damages were awarded
only for the <act8 of the Florida and her tenders, the Alabama
and her tenders, and of the Shenandoah after she left Mel-
bourne. As to the Georgia^ Sumter, Nashville, Tallahassee,
and Chirkamauga, respectively, the tribunal found that Great
Britain had not incurred any liability.*
The cases of the Sallie, Jefferson Davis, Music, Boston, and
V. H. Joy, respectively, were excluded from consideration for
want of evidence.
The proce-iHlings of the tribunal in respect of particular ves-
sels were as follows :
a. The Sumter.
The Case of the United States set forth
Poritionof tiieUxiited ^^^^ ^^^ Sumter escaped from the passes of
the Mississippi on the 30th of June 1861, and
on the 30th of the following July arrived at the British port
I The votes of the tribunal on the <ine8tion of Great Britain's liability
in each of the cases considered was as follows:
Sumter Unanimously **No."
Nashville Unanimously " No."
Betribution Mr. Adams. '^ Yus, for all the acts of this yeasel.^'
Mr. Staempfli, ^' Yes, as to the loss of the Emily
Fisher.** Sir Alexander Cockbum, Viscount
d'ltjijuba, and Count Sclopis answered "No."
Georgia Unanimously "No."
TallahasHee Unanimously " No."
Chickamauga Unanimously " No."
Alabama Unanimously *' Yes."
Shenandoah Mr. Adams, Mr. Staempfli, and Count Sclopis an-
swered " Yes; but only for the acts committed
by this vessel after her departure from Mel-
bourne, on the 18th of February 1865." Vis-
count d'ltajuba and <Sir Alexander Cockbum
answered " No."
Florida Mr. Adams, Visconnt d'Itajab|[, Mr. Staempili,
and Count SclopiM answered "Yes." Sir Alex-
ander Cockbum answered "No."
The votes on the TuscaJoosOf the tender of the Alabama, and the Clarence,
Tacoiiijf and Archer j tenders of tlie FUfridttf were the same as on the prin-
cipal vessels. (Papers relating t<» the Treaty of \VviaV\\w^q\\,AN /yv^*^.^
4122 INTERNATIONAL ARBITRATIONS.
of Trinidad. Here her commanding officer exhibited a com-
mission signed by Jefferson Davis, as president of the Confed-
erate States, whereupon she was recognized as a man-of-war,
being the first vessel belonging to the Confederate States that
was so recognized. She remained at Trinidad for six days,
taking in <^a full supply of coal and other necessary outfit."
She sailed on August 5, 1861, and, after a cruise in which she
destroyed six vessels carrying the flag of the United States,
arrived at Gibraltar on the 18tli of the following January.
Here she was shut in by the U. S. man-of-war Tuscarora^
which anchored off* Algeciras. Being unable to escape, she lay
at Gibraltar till December 19, 1862, when she was sold at
"public auction.'' Mr. Adams, the minister of the United
States at London, protested against the sale on the ground
that the purchase of ships of war belonging to enemies was
" held in the British courts to be invalid,'' as well as on the
ground that the sale was fictitious. Earl Russell replied that
the British Government "could not assume that t\\e Sumter
had not been legally and bona fide sold to a British owner for
commercial and peaceful purposes," but that "it would not
deny the right of the adverse belligerent to ascertain, if such
vessel were captured by its cruisers, whether the vessel had
rightfully, according to the law of nations, come into the pos-
session of the neutral." It turned out that the purchaser was
an agent of Fraser, Trenholm & Co., the Confederate deposi-
taries at Liverpool. The vessel was taken to Liverpool, thor-
oughly repaired, and, under the name of the Oibraltar, fur-
nished with a British register. She then took on board a
cargo of arms and munitions of war with a view to run the
blockade.
The Case of the United States asked the tribunal of arbitra-
tion to find that Great Britain had failed in her neutral duties
on the following grounds:
1. That the Sumter was permitted to receive at Trinidad a
full supply of coal. While there were no precedents at the
time that settled absolutely the quantity of coal which might
be furnished to a belligerent steam man-of-war by a neutral,
instructions issued by Iler Majesty's government a few months
later provided that the sui>ply should be measured by the
capacity of the vessel to consume it, and should be limited to
what might be necessary to take it to the nearest port of its
own country, or to some n(»arer destination. The President's
neutrality: the geneva arbitration. 4123
proclamation of October 8, 1870, issned during the Franco-
German war, limited the supply of coal to the vessels of war or
privateers of the belligerents to so much as might be sufficient
to carry the vessel, if without sail power, to the nearest
European port of its own country; if with sail power, to half
that quantity. Under this rule the Sumter would have been
entitled to receive only what would be necessary to take her
to New Orleans or Galveston.
2. That the Sumter was in the port of Gibraltar when the
instructions of January 16, 1862, were published there, on the
11th of February, by which she ought to have been required
to leave the port within twenty-four hours, or, if without coal,
within twenty-four hours after getting a supply of it. She was
permitted to remain twelve months, while the instructions
were rigidly enforced against the vessels of the United States.
Had they been enforced against the Sumter, vessels of the
United States, which were then on her track, would have
captured her.
3. That the sale of the Sumter was a palpable evasion. It
was probable that there was never any change of ownership.
But, if there was, it was equally probable that the money
found its way to the credit of the insurgents in their liiverpool
transactions.
On the part of Great Britain, liability on
Pontion of Great ^^^^^^^^ ^f ^^^ Sumter was denied on the fol-
Bntain.
lowing grounds:
The Sumter was a merchant steamer purchased by the Con-
federate Government in one of its own ports about or soon
after the commencement of the war, and afterward fitted and
commissioned as a public ship of war of the Confederate States.
After she put to sea she entered in succession the Spanish
port of Cienfuegos, the Dut(;h port of St. Annes, Curasao, the
Venezuelan port of Puerto Cabello, the British port of Trini-
dad, tlio Dutch jjort of Paramaribo, the Brazilian port of San
Juan de Marauham, the French ports of Port Royal and St.
Pierre, in Martinique, the Spanish port of Cadiz, and the Brit-
ish port of Gibraltar. " In each of these ports she was received
as a commissioned man-of-war. At Cienfuegos, Curasao, Par-
amaribo, Trinidad, Maranham, and Martinique she obtained
sapplies of coal and provisions. At Curasao she appeared to
have stayed seven days; at Paramaribo, twelve; at Maran-
ham, nine; at Martinique, fourteen; at Cadiz, thirteen. The
4124 ' INTERNATIONAL ARBITRATIONS.
period of time which elapsed between the dates at which she
was suffered to coal at various ports appears to have been as
follows: From Cienfuegos to Curagao, ten days; irom Curasao
to Trinidad, six; from Trinidad to Paramaribo, fourteen; from
Paramaribo to Maranham, six; from thence to Martinique, fifty-
five; from Martinique to Cadiz, forty-two. As to the quantity
of coal which she took on board, she appears to have obUiined
100 tons at Cienfuegos, 120 tons at Curac^-ao, 80 at Trinidad,
125 at Paramaribo, and 100 at Maranham. At Martinitiue she
received, by the written ])ermission of the governor, a sufficient
stock to carry her across the Atlantic. At Trinidad she had
applied for leave to purchase coal from the government stores,
but this request was refused, and she procured it from private
merchants. * * • Of the prizes taken by the /S^wwt^er eleven
were captured before she put in at Trinidad; none between
the date of her leaving Trinidad and that of her arriving at
Paramaribo; • ♦ • two between Paramaribo and Puerto
Cabello; three after leaving Martinique."
As to the grounds on which liability for the Sumter was
sought to be established, Great Britain took the following
grounds:
1. Tliat ^Mnternational law sets no limit to the quantity of
coal which may be obtained by a belligerent cruiser in a neu-
tral port;" and that there *'is no sudi thing, therefore, as an
'excessive' supply." But if there had been any foundation
for the ^'i)reteiided rule" which the United States set up, there
was no evidence that the supply of coal obtained by the Sum-
ter at Trinidad was more than enough to carry her home.
2. Timt the Sumter arrived at Gibraltar after the orders lim-
iting the period during which belligerent vessels of war were
to be suffered to remain in British i)Ovts, and that they could
not, therefore, with justice be aiq)lied to her.
3. That the Sumter, after her arrival at Gibraltar, was dis-
armed, and her crew dismissed, and after she was sold she
was never used for war; that while the sale of a belligerent
ship of war cooped up by an enemy in a neutral port had
been' adjudged by a prize court of that enemy to be invalid for
the i)urpose of transferring title to the neutral and terminating
the risk of capture, yet such a sale was not illegal. It violated
no law, and cailed for no interference on the i)art of the neutral
government; and when the Sumter left Gibraltar she left un-
armed and at the men^y of any United States ship which
might fall in with her.
neutrality: the geneva arbitration. 4125
In the argament of the United States it
^'S^^i^stltM!^* was stated that when the Sumter appeared at
Puerto Cabello, in Venezuela, she was ordered
to *'take her departure within four and twenty hours," and
that she left on the morning of the next day; that on her
arrival at Cadiz, on January 4, 1862, she was permitted, after
a careful survey, to go into dock and make such slight repairs
as were immediately necessary, but that the minister of the
United States at Madrid reported that "if it had not been for
the example of what had taken place with the Nashville in an
English port-' he believed "the Sumter would have been
forced to go to sea from Cadiz as she came.'' It was also
stated that when the United States complained of the recep-
tion of the Sumter at Curasao and Paramaribo the Govern-
ment of the Netherlands instructed its colonial authorities not
to admit, except in case of shelter from stress {reMche forc^e)
the vessels of war and privateers of the two belligerent parties
unless for twice twenty- four hours, and not to permit them,
when they were steamers, to provide themselves with a quantity
of coal more than sufficient for a run of twenty-four hours;
that the crew of the Sumter was not discharged and paid off
till April 18G2, and that she was yet in port fully armed when,
on December 8, she was advertised to be sold at public auction,
a prior attempt to sell her by private contract having miscar-
ried in consequence of an informality.
Viscount d'ltajubsi expressed the opinion
^""^'lu* b£**^ ^^^^ Great Britain had not incurred any lia-
bility on account of the Sumter.
Mr. Adams held that, as to the question
Kr. Adams's Opinion, whether the Sumter had made use of the ports
or waters of Great Britain as a base of naval
operations, the only resemblance to such a thing was the
supply of coals received at Trinidad. But this supply "was
exhausted without an opportunity of doing damage before
reaching the port of another sovereign, and nothing was ever
received from British sources afterward. I fail, therefore,"
continued Mr. Adams, "to see wherein Her Majesty's govern-
ment has omitted to fulfill any duty presented in this case, for
I can not discover what duty she was called to fulfill. • • •
It is alleged that she (the Sumter) was suffered to remain an
undue length of time in the port of Gibraltar, and that a
fraudulent sale was recognized which enabled the insurgents
4126 INTERNATIONAL ARBITRATIONS.
to transfer the vessel to Liverpool, and use her again, under a
British register, as a transport for their cause. The answer
to this is, that her detention at Gibraltar, however it may be
considered, was certainly productive of no damage, while her
presence on the ocean might have been. And as to the fraud-
ulent sale, the vessel was open to capture in her defenseless
state, and it was conceded that no reclamation could have
been made for it. So likewise she was open to capture in
her latest capacity as transport. In neither case does Her
Majesty's government appear to me to have incurred any
responsibility under the three rules of the treaty which can be
estimated in damages."
Mr. Staempfli held that Great Britain bad
^•^^""P^''^^' not failed in her duties, as laid down in the
lOZL
three rules of the Treaty of Washington, in
respect to the Sumter up to the arrival of the vessel at Gibral-
tar, and was not, therefore, responsible for the ships destroyed
during her cruise. But he expressed the opinion that Great
Britain had violated the second rule in affording her a pro-
tracted shelter, and in permitting her disarmament and pre-
tended sale, in the port of Gibraltar, and was therefore respon-
sible for the sum for which the vessel, her armament and
equipment, were sold, for the expenses incurred by the ships
of the United States in watching her during her stay at
Gibraltar, and for the expense of her pursuit after her depart-
ure from that port. Mr. Staempfli, however, subsequently
modified this opinion, and concurred in the decision unani-
mously readied by the arbitrators in the case of the Sumter.
Sir Alexander Cockburn argued at length
^^b^^^tlor^" ^^^'^^ ^^®^* Britain had not incurred any Ua-
bility in the case.
In its award, the tribunal unanimously held
Awaxfl. that, in respect to the Sumirr^ " Great Britain
has not failed, by any act or omission, to ful-
fill any of the duties prescribed by the three rules of Article
VI. in the Treaty of Washington, or by the principles of
international law not inconsistent therewith.''
h. The Nashville,
(For the full record of the arbitration in this case see Papers
relating to the Treaty of Washington, as follows: American
Case, 1. 132; British Case, id. 2'A2', British Counter Case, II.
neutrality: the geneva arbitration. 4127
295; American Argument, III. 138 j Mr. Evarts's Special Argu-
ment, id. 461 ; Opinion of Viscount d'ltajubd, IV. 101 ; Opinion
of Mr. Adams, id. 212; Opinion of Sir Alexander Gockburn,
id. 519; Award, id. 52.)
The Case of the United States set forth that
^'*** statM. *^® N'oshvilUj a laige paddle-wheel steamer
formerly plying between New York and
Charleston, armed with two guns and commanded by an officer
who had been in the United States Navy, ran out from Charles-
ton on the night of October 26, 1861, and arrived at the British
port of St. Oeorge, Bermuda, on the 30th of the same month.
Here, by permission of the government, she took on board 600
tons of coal, and this act was approved by Her Majesty's sec-
retary of state for the colonies. In view of the rule as to sup-
plies of coal which was subsequently adopted by Her Majesty's
government, the United States insisted, as they had done in
the case of the Sumter, that a supply of 600 tons was greatly
in excess of theNashville^s needs, and that the most she should
have received was enough to take her back to Charleston.
She left Bermuda on November 5 and arrived at Southampton
on the 21st of the same month, having destroyed at sea a
United States merchant ship. At Southampton she under^
went repairs and received 150 tons of coal. On the 4th of
February 1862 she left Southampton and proceeded to Ber-
muda, where she arrived on the evening of the 20th. On the
preceding day the consul of the Unit^ States had received
from the government official notice that the government of Her
Majesty had determined not to allow the formation in any
British colony of a coal depot for the use of vessels of war of
the United States. The Nashville^ however, took on board 150
tons of coal, and left the port under the escort of Her Majes-
ty's steamer Spiteful. Under the circumstances, the United
States maintained that Great Britain had failed to discharge
her neutral obligations.
The British Case stated that on the first visit
The Biituh Case and ^^ ^^^ Nashville to Bermuda the authorities
Comiter Case.
refused a request of her commander for leave
to draw a supply of coals from Her Majesty's dockyard, and
that she secured a supply from a private yard. When she
arrived at Southampton directions were sent from the foreign
office that she should not be allowed to equip herself more com-
pletely as a vessel of war, or to take in guns or munitions of
4128 INTERNATIONAL ARBITRATIONS.
war. Bepreseotations made by Mr. Adams were duly attended
to, and the vessel was watched. The repairs which she received
did not in any way fit her more completely as a vessel of war.
In July 1862 the United States steamer Tuscarora was at Soath-
ampton for about three weeks undergoing repairs. In both
cases Her Majesty's government observed the duties and limi-
tations of neutrality.
In the British Counter Case it was observed that the deci-
sion of Her Majesty's government, in respect of the formation
of coal depots at Bermuda, did not prohibit the taking of coal
by the cruisers of either belligerent from private sources, and
did not prevent United States ships of war from subsequently
obtaining there, on two or three occasions, like supplies when
necessary. As to the departure of the Nashville under the
alleged "escort" of Her Majesty's steamer Spiteful^ it was
stated that this was only a measure of precaution adopted by
the admiral ou the station, as when the Nashville sailed there
were several vessels in sight, some of which might have been
American, and tlie admiral thought it advisable to send the
Spiteful outside to insure respect being paid by the Nashville
to the British territorial limits.
It was shown that the first supply of coal obtained by the
Nashville at Bermuda was about 450 tons.
Viscount d'ltajubi'i expressed a formal opin-
Opinion of VijKX)imt .^^^ ^^ ^^^ ^^.^^^ ^^^^ ^^.^^^ Britain had not
failed in any neutral duty in respect of the
Nashville.
Mr. Adams in his opinion referred to the
^^AdA^ ^' fact, which had been pointed out in the Amer-
ican case, that the Nashville in order to get
speedily out of Charleston Harbor had been compelled to go
light, in consecjuence of which she stood in need of consider-
able supplies of coal at Bermuda to enable her to ettect her
contemplated i)assage to Southampton. But, said Mr. Adams,
in order to bring the vessel within the purview of the second
rule of the Treaty of Washington it was necessary to consider
the question of intent on the part of the British authorities,
as well as that of negligence. He could not gather sufficient
material to enable him to decide against Her Majesty's gov-
ernment on either of these points. At the outset of the strug-
gle and before the receipt of clear directions to regulate their
conduct, it might very well happen that the authorities in the
NEUTRALITY: THE GENEVA ARBITRATION. 4129
remote dependeDcies of the empire would make mistakes of
judgment in permitting supplies, without meaning to be partial
to one side or the other. He had no reason to suspect that the
same measure would not at that time have been granted to
any vessel of the United States. A few tons more or less of
coal could scarcely be called convincing proof of malicious
intent, and from his observations of the general course of Gov-
ernor Ord, of Berfriada, he had failed to gather any clear
traces of a disposition to be otherwise than impartial.
With respect to the stay of the Nashville at Southampton and
the supplies obtained there, Mr. Adams said that he did not
tind that the case was essentially difterent from that of the
United States steamer Tmcarora^ which was at that port at
the same time. Last of all, he entertained serious doubts
whether the Nashville was ever intended by those who fitted
her out, for the purpose of cruising as a depredator on the
ocean. The governor of St. Georges seemed to have been con-
vinced that the object of the ship was connected with the
establishment of diplomatic relations in Europe and procur-
ing naval supplies and stores. At one time the vessel was
intended to bring out Messrs. Mason and Slidell, and she actu-
ally did have on board Colonel Peyton, supposed to be charged
with a mission of the same kind. The two captures which she
made seemed to have been of vessels she chanced to meet with
on her straight course to Southampton and back, without the
slightest deviation from her track. ( )n the whole, Mr. Adams
said that he failed to find solid ground upon which to base any
charge either of intention or negligence against Her Ms^esty's
government in the case of the Nashville,
The tribunal of arbitration unanimously
Award. found that Great Britain had not failed, in
respect of the Nashville^ by any act or omis-
sion, to fulfill any of the duties prescribed by the three rules of
Article VI. of the Treaty of Washington, or by the principles
of international law not inconsistent therewith.
c. The Florida^ and her tenders the Clarence^ the Tacony, and the
Archer,
(For the full record of the arbitration in the case of the
Florida, see Papers relating to the Treaty of Washington, as
follows: American Case, I. 99, 100, 101, 133; British Case, id.
274; American Counter Case, id. 437; British Counter Casft.^
4130 INTERNATIONAL ARBITRATIONS.
II. 209, 350; American Argument, III. 57; British Argamenty
id. 274, 283; Argument of Sir Koundell Palmer, id. 541 ; Argu-
ment of American Counsel, id. 540; Opinion of Count Sclopis,
IV. 90; Opinion of Viscount d' Itajuba, id. 08; Opinion of Mr.
Steampfli, id. 108; Opinion of Mr. Adams, id. 150; Opinion of
Sir Alexander Cockburn, id. 367; Award, id. 51.)
The American Case set forth that the Florida^
Case of the United originally known as the the Ore^o, was a bark-
^**** . rigged, iron screw gunboat, of about 700 tons
burden, constructed at Liverpool under a contract made with
Fawcett, Preston & Co., by Captain Bullock, the agent in
Europe of the Confederate navy. It was pretended that she
was constructed for the Italian Government, but the Italian
consul at Liverpool disclaimed any knowledge concerning her.
By February 4, 1802, t^aid the Case of the United States,
the Oreto was taking in coal, and appearances indicated that
she would soon leave without her armament. February 17 she
made her trial trip, and by the 1st of March had taken in
a large quantity of provisions. Gun carriages were taken on
board, in pieces, some in a rough state, and were put in the
hold Although apparently ready to sail, she lingered about
Liveri)ool till the 22d of March; on the 11th of that month she
was visited in the Mersey by Captain Bullock and four other
insurgent naval oflBcers, who were entertained on board.
Simultaneously with these proceedings, cannon, rifles, shot,
shells, and other munitions of war, intended for the vessel,
were shipped from Hartlepool by the steamer Bahama for
Nassau.
On February 28, and again on March 25, 1862, said the Case of
the United States, Mr. Adams, who was informed by the United
States consul at Liverpool of what was taking place, called
Earl Russell's attention to the character and destination of the
vessel. The British commissioners of customs at Liverpool
reported, however, that while the Oreto was a vessel of war,
pierced for four guns, they believed that her destination was
Palermo, and that she was intended for the Italian Govern-
ment. They subsequently reported that she was registered on
the 3d of March in the name of Henry Thomas, of Liverpool,
as sole owner, and that she cleared on the following day for
Palermo and Jamaica in ballast, but did not sail till March 22,
when she had a crew of fifty-two men, all British, except three
or four, (mly one of whom was an American.
neutrality: the geneva arbitration. 4131
Such au examination and report coald not, said the Ameri-
can Ciise, be regarded as an exercise of the dae diligence called
for by the rules of the Treaty of Washington ; and the neglect
to prevent her departure from Liverpool, where she was fitted
out and equipped for war, lacking only her armament to enable
her to do battle, constituted a failure to use the due diligence
re<iuired by the second clause of that treaty.
The Oreto, continued the American Case, arrived at Nassau
on April 28, 1862, and was taken in charge by Heyliger, a
recognized Confederate agent. A few days later the Bahama
arrived, and the two branches of the hostile expedition, which
had left Great Britain in detachments, were thus united in
British waters. The United States consul at Nassau called the
attention of the governor to the character of the vessel, but at
first the latter declined to interfere. On the 7th of June, how-
ever, the Oreto and the Bahama were both arrested and brought
to an anchorage in the harbor of Nassau. On the following
day Captain Semmes and his officers from the Sumter arrived
as passengers in a mail steamer from England, and the Florida
was released, her agents having assured the governor that it
was their intention to clear in ballast for Havana. The consul
of the United States then Jippealed to Captain Hickley, of
Her Majesty's ship Greyhound^ who, after making an investiga-
tion and drawing up an opinion that the OretOy as she then
stood, could, by going out with another vessel alongside, be
equipped in twenty-four hours for battle, sent a file of marines
on board and took her into custody.
A trial under the foreign enlistment act, begun on July 4,
18G2, was, declared the Case of the United States, conducted
as a formality, and without any eftbrt to elicit the truth. The
court ruled out all evidence as to what took place before the
arrival of the vessel at Nassau, and she was released. In
the meantime one of the Confederate officers bad enlisted a
crew at Nassau, and on the 8th of August the Oreto was cleared,
ostensibly for St. Johns, New Brunswick. On the following
day a schooner sailed from Nassau with cannon, shot, shells,
and provisions, and laid her course for Green Cay, one of the
British Bahamas, about sixty miles distant. The Orrto, then
lying outside with a hawser attached to one of Her Majesty's
ships of war, cast oft* and took the schooner in tow. The arms,
munitions, and stores were soon transferred, and the schooner
returned to Nassau unmolested. The OretOy now called the
5627— VOL. 4 57
i
4132 INTERNATIONAL ARBITRATIONS.
Florida, made for the coast of Cuba. The tribunal was asked
to fiud that these proceedings at Nassau and in the Bahamas
constituted a violation of neutral duty.
At Cardenas, in Cuba, said the American Case, the Florida
attempted to ship men, but was prevented by the authorities
from doing so. On the 4th of September she ran through the
blockading squadron at Mobile, pretending to be a British man-
of-war, and flying British colors. She remained at Mobile till
the 16th of January 1863, when she made her escape.
On the 26th of January 1863, said the Case of the United
States, the Florida reentered the port of Nassau, having
destroyed three vessels. Sbe was cordially received, and was
permitted to remain thirty-six hours, during which time she
took in coal and provisions to last for three months, with the
permission of the authorities, in violation of the instructions
of January 31, 1862, which commanded (with certain excep-
tions) tbe departure of belligerent vessels within twenty-four
hours, denied supplies beyond what might be necessary for
immediate use, and forbade the taking of more coal than would
carry the vessel to the nearest home port, or some nearer
destination, or the taking of coal in British waters more than
once in three months, unless by special permission. These
rules were, said the Case, rigidly enforced against the United
States, and tlieir relaxation in favor of the Confederacy, so
that British territory was made a base of hostile operations,
constituted a breach of neutrality.
The Florida left Nassau January 27, 1863. On February 24
she obtained at Barbados about a hundred tons of coal, in
violation of the instructions of January 31, 1862. On the 26th
of February she sailed again from Nassau, and in a short time
had captured or destroyed fourteen vessels, so that on April
25, 1863, her commander was able to boast that *' six million
dollars will not make good the devastation this steamer has
committed."'
On the 16th of July 1863 the Florida, said the American
Case, arrived at Bermuda, where she remained nine days, was
thoroughly repaired, and took in a full supply of coal which
had been brought to her from Halifax, notwithstanding the
general order that neither belligerent should be permitted
to make coal depots in British colonial ports. This consti-
tuted a fresh violation of neutral <lnty. From Bermuda she
sailed for Brest, and on the way destroyed two vessels. In
NEUTRALITY: THE GENEVA ARBITRATION. 4133
Jane 1864 she again appeared at Bermada and made appUca-
tion to be permitted to repair. She was accorded permission
to remain five days for that purpose, but actually remained
nine. When she sailed on the 27th of Jane she took with her
135 tons of coal and large quantities of ship's stores. Subse-
quently she destroyed five merchant vessels of the United
States, her career as a cruiser ending at Bahia on the 7th of
October 1864.
During the cruise of the Florida^ said the Case of the United
States, three tenders were fitted out and manned from her
officers and crew — the Chirence, the Tacony, and the Archer.
The Clare7ice was destroyed when the Taeony was fitted out,
and the Taeony was in turn destroyed when the Archer was
fitted out. Each of these vessels made captures; the Archer
destroyed the U. S. revenue cutter Caleb Cushing,
The Case of the United States asked the tribunal, if it should
exercise the power to award a sum in gross for the Florida and
her tenders, to take into account the losses of individuals in
the destruction of their vessels and cargoes, and the expenses
to which the United States were i)ut in the pursuit of each of
the ofi'ending vessels.
According to the British Case, the Florida
The British Com. was ordered of her constructors for and on
account of a resident of Liverpool, who was a
partner in a mercantile house at Palermo, and on her comple-
tion was registered in the name of this person, on his own
declaration. Though her fittings and arrangements were suit-
able to a ship of war, she was unarmed and had on board no
guns or warlike stores. No facts proving, or tending to i)rove,
that she was intended to cruise or carry on war against the
United States were eommunicated to Her Majesty's govern-
ment before the ship's departure: and it was certain that, if
she had been seized, a court of law would have ordered her
restoration, for want of evidence to support a forfeiture.
The vessel sailed from Liverpool, said the British Case, with
a clearance for Palermo and Jamaica, unarmed and with no war-
like stores of any kind, under the command of a master belong-
ing to the British mercantile marine, and manned by a crew who
were not enlisted for the Confederate service and had no
thought or intention of engaging in if}, and who afterward left
the ship as soon as they conceived a suspicion that she might
be employed in that service. When she arrived at Nassau,
4134 INTERNATIONAL ARBITRATIONS.
though no warning had been sent to the authorities iu regard
to her, she was watched by order of the governor; a ship of
war was placed near her; she was finally seized by order of
the governor, and proceedings were instituted against her in
the proper colonial court. The assumption on which the judge
appeared to have proceeded, that evidence of acts done before
tlie arrival of the Oreto could not be received, unless for the
purpose of explaining acts done after her arrival, was perhaps
erroneous. Her Majesty's government believed that in a pro-
ceeding in rem against a ship under the foreign enlistment act
to enforce a forfeiture, a court, wherever situate within the
dominions of the Crown, might lawfully receive and adjudicate
upon the evidence of such infringement, wherever the act or
acts constituting it might have been committed; yet the deci-
sion of the court at Nassau was the judgment of a court of
competent jurisdiction, and was, as such, binding on the exec-
utive authorities of the colony. Nor could proof of acts done
out of the limits of the colony have altered the decision of the
court, unless it had supplied evidence of an unlawful intention.
On being released at Nassau the Oreto, continued the Brit-
ish Case, sailed unarmed, with a clearance for New Brunswick,
Before committing any hostilities against the vessels of the
citizens of the United States she sailed for and entered the
Confederate port of Mobile, where she remained during more
than four mouths and was put in condition for war, and enlisted
a crew, and from whence she was finally sent out to cruise.
She was commissioned as a ship of war of the Confederate
States, and was commanded by an oilieer commissioned by the
government of those States. She was received on the footing
of a public ship of wnv in the ports of neutral nations — Spain,
France, and Brazil. No advantage was conceded to the Florida
either at Nassau or at Barbados which had not before been
granted to the cruisers of the Tnited States. It appeared
that both the United States ship San Jacinto and the Fhridu
had been permitted to obtain coal nt Barbados in less than
three months after they had respectively coaled at another
British colony, the commander of each vessel having alleged
that his supply of coal had been exhausted by stress of
weather; and in consequence on July 16, 1803, the colonial
secretary expressed a dispatch to the governor of Barbados,
and similar instructions were sent to governors of other
colonies in the West Indies, directing that no special permis-
sion be given for the taking of a t;econd supply of coal within
NEUTRALITY: THE GENEVA ARBITRATION. 4135
three months from the last, unless it appeared that, owing to
real necessities arising from stress of weather, the coal origi-
nally given had been prematurely exhausted before it was pos-
sible that the vessel could, under existing circumstances, have
reached the destination for which she coaled, or if she had not
since taking coal been bona fide occupied in seeking her alleged
destination, but had consumed her coal in cruising. At Brest,
on the contrary, the Florida was permitted to remain nearly
six months, from August 23, 1863, till February 9, 1864, during
which time she eflFected repairs, refitted, had her small arms
mended, and enlisted a large number of sailors in place' of
those whose terms of service expired.
The United States men-of-war blockading the port of Mobile,
said the British Case, failed to capture the Florida when she
entered it, under circumstances which made the capture so
easy of accomplishment that the officer to whose incapacity the
failure was due was dismissed the service. They again failed
to capture her when she left the port to commence her cruise;
nor was any serious endeavor to capture her made by the
United States. Her Majesty's government could not admit
that, ill respect of the Florida^ it was chargeable with any fail-
ure of duty.
It appeared by the British evidence that an inquiry made of
the Italian Government before the Oreto left Liverpool elicited
the resi)onse that the government knew nothing of the vessel.
The American and British Counter Cases brought out noth-
ing beyond some minor corrections of statements of facts.
The question as to the legal etfect of the
^/« !ii Floridah entrance into the port of Mobile was
into llobila. ^
made the subject of special argument by coun-
sel on both sides.
Sir Roundel! Palmer, on behalf of Her Maj-
"^iTpaimer ^" ^®^y'^ government, argued that even if the
antecedent facts were such as to show a want
of due diligence in respect of the vessel, it did not follow that
such want of diligence involved, as its legitimate consequence,
responsibility for her acts, since she never cruised or committed
any act of hostility against the United States until after she
had been for a long interval of time in a Confederate port, and
had then issued as a duly commissioned Confederate cruiser,
and in an altered condition as to her capacity for war. The
Florida did not enter the port of Mobile merely in transitu^ or
as a point of immediate departure for a subsequent cruise, for
4136 INTERNATIONAL ARBITRATIONS.
which the necessary preparation had already been made in
British territory; but she remained there for more than four
months, and there engaged the crew which enabled her to go
to sea and commit hostilities. Treating the transaction as one
of a breach of blockade, or as the conveyance of contraband,
the direct ageuts in conveying the Florida into Mobile woald
not have been nnder any continuing responsibility under inter-
national law after leaving her there and returning to their own
country. Ought then such a continuing responsibility to attach
to a nation from whose territory she was sent out merely for
want of due diligence to prevent the transaction? The legiti-
mate inference was that any responsibility previously incurred
came to its natural end when, no act of war having previously
been committed, the Florida was once at home at Mobile, and
became bona fide incorporated, within their own territory, into
the naval force of the Confederate States. This principle was,
said ISir Roundell Palmer, a legitimate inference from the opin-
ion of ("hief Justice Marshall in the case of the Gran Para^ 7
VVhcaton, 471.
Messrs. Cushing, Bvarts, and Waite, coun-
lewao encan ^^^ ^^^ ^^^^ United States, maintained that the
Counsel.
analogy sought to be created by Sir Roundell
Palmer to the case of contraband trade was but a subtle form
of the general argument that the outfit of the Florida was but
a dealing in contraband of war, and was to carry no other con-
sequence of responsibility than the law of nations affixed to
such dealing. This argument had, however, been suppressed
by the rules of tlie treat}^ and the case of the Gran Para was
a direct authority for continuing responsibility. The British
argument amounted to the proposition that the seamen enlisted
at Mobile became thereafter the effective maritime war power
of the Florida, and that the cruiser and her warlike qualities
became of secondary imi)ortance. 1 n fact, the evidence of what
occurred at Mobile by no means showed that the crew with
which the Florida left that i)ort consisted of original enlist-
ments there, or of more than in many cases the mere reenlist-
ment of her former crew.
Count Sclopis held that Great Britain was
^^""sM ° • °^ responsible for the acts of the Florida. When,
he said, the vessel arrived at Nassau, she was,
as shown by the report of Captain Ilickley, possessed of a
complete warlike ei\u\\\uvttut^ iiud all that was wanting on board
NEUTRALITY: THE GENEVA ARBITRATION. 4137
oflierwas a- supply of iimnitious of war. The situation at
Nassau increased the responsibility of England, since the port
was one from whicli hostile operations might conveniently bo
carried on, either by the Confederacy or by the United States.
Under these circumstances was it not the imperative duty of
England to take care that all the duties of the most scrupu-
lous neutrality were fulfilled f The decision of the vice-admi-
ralty court, acciuitting the vessel, did not release the English
Government from responsibility under the rules of the Treaty
of Washington, though it might have been conclusive as be-
tween the British Government and those who claimed the
vessel. In respect of the United States it was res inter alios
cLcia. The conduct of the vessel within British jurisdiction
after her release more than justified all the suspicions that had
been entertained as to the true character of her voyage.
As to the ap])lication of the second rule of the Treaty of
Washington, tom^hing the use of neutral ports or waters as
the base of naval operations, Count Sclopis thought it suffi-
ciently proved that the facility with which the Florida was
allowed to supply herself with coal in the colonial ports was
not in conformity with the strict neutrality which should have
been observed in those latitudes, to say nothing of the ques-
tion whether there was not a too easy compliance with the
wishes of the commander of the vessel in regard to repairing
and refitting.
As to the stay of the Florida in the port of Mobile, and the
consequences resulting therefrom. Count Sclopis said that he
adopted the views presented by Mr. Staempfli.
As to the tenders fitted out and forming part of the forces
of the Floridny Count Sclopis was of opinion that the respon-
sibility of the British Government was the same as in respect
of the principal vessel.
Viscount d'ltajubsl expressed the opinion
^*^°d»iu' bT"*'^ that, in view of all the facts relating to the
building of the vessel and her departure from
Liverpool, her stay at Nassau, her armament at Green Cay,
and, in spite of her known infractions of the British neutrality,
her subseciuent reception in colonial ])ort8, the British Gov-
ernment was responsible under the rules of the Treaty of
Washington for the acts of the Florida and her tenders, not-
withstanding her entrance and stay in the port of Mobile.
#
4138 INTERNATIONAL ARBITRATIONS.
Mr. Staemptli )ield that there was a lack of
^^m^' "^^^® diligence" in the fulfillment of neutral
duty (1) in regard to the constmction, fitting
out, and equipment of the Oreto at Liverpool and her depar-
ture from that x>ort, and the departure of the Bahama, laden
with arms for the Oreto^ particularly as the British authorities
did not communicate with or send instructions to the colonial
authorities with respect to the vessels; (2) in regard to what
took place at Nassau — the absence of all initiative to ascertain
the truth, the defective nature of the judicial proceedings, the
omission of all measures to pre . ent her arming and equipping
in British waters, and the failure subsequently to take pro-
ceedings against her on charges of violation of British neu-
trality when opportunity offered; and (3) in regard to her
being allowed to supply herself with coal in such quantities
that each time she was enabled to undertake a fresh cruise.
As to the e%ct of the entrance of the Florida into the port of
Mobile through the blockade, Mr. Staempili held that, even if
the charge of negligence against the ofBcers maintaining the
blockade had been proved, this fact would not have released
Great Britain from responsibility for her own negligence, which
was the primary cause of the vessel's hostile career.
In respect of the tenders of the Florida^ Mr. Staempfli held
that the same rules applied as in the case of the principal
vessel.
Mr. Adams, in his opinion on the case of the
OpinionofMr. Adams, ^/oru/a, maintained that the information in
the possession of Her Majesty's government,
before the sailing of the Oreto from Liverpool, was such as
ought to have shaken faith in the statements of the parties
who alleged the innocent character of the vessel. If the infor-
mation furnished by Mr. Dudley, the United States consul at
Liverpool, had been followed up with diligence, it would cer-
tainly have ended in the detention of the Oreto^ which deten-
tion, at that critical moment, would probably have had the
effect of putting a stop to all similar enterprises. But the
government did not seem to have been, at that moment at
least, conscious of any obligation to originate investigations
at all. An inquiry made of the Italian (lovernment twenty
days before the escape of the Orelo had elicited a response
which, if not absolutely decisive as to the destination of the
vessel, certainly tended to throw the gravest possible doubt
upon it. Yet \l diOi wot v\^\>^'ax Wivv\> t\\^ vjiUeution of the
NEUTRALITY: THE GENEVA ARBITRATION. 4139
parties concerned in misstating the destination of the vessel
was called to their misstatement, though the motive of it, in
view of the existence of a state of peace in every quarter of the
civilized world but one, was scarcely open to doubt. It did not
appear that the movements of the vessel were even watched by
the authorities at Liverpool. It did not seem to have occurred
to those authorities to ask themselves why, if the dispatch of
the steamer was a legitimate act, there was need of the false-
hood about the Italian Government, and the further falsehood
as to the ownership of the vessel; nor did it seem to have
occurred to Her M^esty's government to consider whether
they had not been cheated by their own officers. The dili-
gence manifested by the British authorities in the case was
not such as was contemplated by the language of the treaty,
because it was not in any sense a spontaneous movement. It
did not get beyond the mere examination of representations
made by the agent of the United States, and if these represen-
tations were explained satisfactorily to the British authorities
they presumed that their obligations were fully performed.
At a later stage of the difficulties this policy appeared to have
been partially changed; but there was no trace of such a
change in the case of the Florida.
The authorities at Nassau, following the example given in
the mother country, did not, said Mr. Adams, consider it incum-
bent u])on them to initiate any measures of a preventive nature.
Their course amounted to holding that it was not until a vessel
should have succeeded in an undertaking of an illegal nature,
which would necessarily imply her escape from the jurisdic-
tion, that the proper time would have come for proceeding
with proof that she ought to have been detained. In spite of
the report made by Commander Hickley at Nassau, the colo-
nial attorney-general gave the opinion that no case had been
made out for seizure. This was the "passive policy," the
example of which had been set at home. The evidence must
come to the government — it was not for the government to
come to the evidence. The governor, however, was not alto-
gether satisfied with the passive policy recommended by the
attorney-general, and decided in favor of the seizure of the
vessel, with a view to the submission of the question to the
local court of vice-admiralty.
As to the decision of the vice-admiralty judge, Mr. Adams
declared that he was oppressed by the conviction that in no
l)ortion of the history of the proceeding was the responsibility
/
4140 INTERNATIONAL ARBITRATIONS.
of Her Majesty's government for the subsequent career of the
vessel more deeply implicated. It was clear by the evidence
before the tribunal of arbitration that the judge was not sus-
tained by the law officers of the crown at home in his view of
the law, and it could only be assumed that there was some
external bias which induced him to give credit to certain per-
sons on the mere score of personal character, and to discredit
the seamen, who clearly told the substantial truth. The judge
seemed to hav^e partaken so largely of the general sympathy
admitted by the governor to have held sway over the entire
population of the island as to render him incapable, in the
case, of a perception of justice. As to the action of the attor-
ney-geueral, said Mr. Adams, it seemed to have been influenced
in the earlier stages of the struggle in America by the belief
that the fate of the Union was settled. But, however this
might be, the vessel was discharged and no serious attempt
was made to prevent the full accomplishment of the purpose
of her owners.
In respect of this transaction, Mr. Adams expressed the
opinion that Great Britain had failed in her duty both under
the first and the second rule of the Treaty of Washington, and
consequently under the third.
As to the entrance of the Florida into the port of Mobile and
her subsequent departure therefrom witii an additional force
of fifty-four men, Mr. Adams observed that the Florida imme-
diately returned to the very spot where her flagrant violations
of British neutrality had been perpetrated, and was immedi-
ately recognized as a legitimate belligerent. Coal and pro-
visions were permitted to be taken in such quantities as to put
the vessel in a condition to commence and continue for some
time a predatory cruise. Subsequently, after a cruise of about
a month, a further supply of coal was obtained at Barbados,
the fact of her late supply at Nassau being supi)resse(l. When
information of these events was received at the colonial office
in London, the liberty was checked, and orders were issued to
be more cautious in the future. After a visit of four days to
Pernambuco, the next British port entered by the Florida was
Bermuda, on the 15tli of July. An application for government
coal was here for the first time refused; but a plentiful su])ply
was obtained from other sources, and the commander trans-
gressed the limit prescribed for his stay for repairs without
censure. This enabled him to cross the ocean and reach Brest,
NEUTRALITY: THE GENEVA ARBITRATION. 4141
in France, on August 23, 1863. In this long cruise, from Janu-
ary 25 to August 23, nearly seven months, supplies of coal were
received exclusively from British sources.
As to the question whether any change as to the original
character in the vessel might be considered to have taken place
by reason of her having succeeded in reaching a port of the
belligerent power to which she claimed to belong, Mr. Adams
said that he could not arrive at any conclusion which even
implied an assent to the proposition ^Hhat success sanctifies
fraud.^^ It was conclusively established that from the moment
of inception to that of complete execution tiie building, equip-
ping, and dispatching of the vessel were carried on by a resort
to every species of falsehood and fraud, in order to bafHe and
defeat the legitimate purpose of Her Majesty's government to
uphold the sanctity of its laws and make good its obligations
to a foreign nation with which it was at peace. Her Majesty's
government might well have seen fit to mark its disapproba-
tion of the indignities thus heaped upon it by at least exclud-
ing the vessel from its ports. But it could not be supposed
that the moral stain attached to a transaction of the character
in question could be wiped out by the mere incident of visiting
one place or another, without any material alteration of the
constituent body inspiring its action. The Florida carried
"the same indelible stamp of dishonor from her cradle to her
grave."
For this reason, s<aid Mr. Adams, he was of opinion in the
case of the Florida that (xreat Britain, by reason of her omis-
sion to use due diligence to prevent the fitting out, arming,
and equipping within her jurisdiction of that vessel, and fur-
ther, of her omission to forbid the crew of the vessel from
making use of her ports or waters as the base of operations
against the United States, had failed to fulfill the duties set
forth in each and all of the three rules of the Treaty of
Washington.
Sir Alexander Cockburn maintained that
Sir Alexander Cock- ^^^ British Government had incurred no re-
bam's Opinion.
sponsibility in the case of the Florida. The
information furnished to that government before her departure
from Liverpool' was not, he argued, such as would have war-
ranted the condemnation of the vessel, and if she had been
seized she must inevitably have been released. The allegation
of the United States consul at Liverpool that gun carriages
4142 INTERNATIONAL ARBITRATIONS.
had been conveyed on board of the vessel proved to have been
a mistake. All that could under the circumstances be asked
for was an inquiry. This Her Majesty's government at once
instituted. The responses made by the authorities at Liver-
pool were of such a character that the government would have
acted most improperly in directing a seizure. The answer of
the Italian minister for foreign affairs as to the destination of
the vessel, that he had no knowledge of it, was not conclusive,
since the subject belonged to the departtnent of marine, and
no answer was received at London from that department until
after the vessel had sailed. If the United States consul had
possessed such positive information as he professed to have in
regard to the character and destination of the gunboat, he
shoftld have communicated it to the legation at London for
communication to Her Majesty's government. As to the clear-
ing of the vessel for Palermo and Jamaica, Sir Alexander
argued that even if the vessel was intended for the Italian
Government, it was not impossible that it might also be in-
tended that she should make a voyage to the West Indies be-
fore being parted with by the builders. In order to warrant
the condemnation of the vessel it would have been necessary
to show not only that she was equipped for war, as to which
there would have been no difficulty, but also that she was in-
tended to be used against a belligerent with whom Great
Britain was at peace. On this subject there was no evidence
beyond surmise, suspicion, and rumor. When the guns were
shipped to Hartlepool to be loaded in the Bahama^ even the
United States consul at Liverpool did not himself suspect that
they were intended for the Oreto. There was not in England,
any more than in America, any system of espionage or secret
police; and it could not be contended that the government
ought to have abandoned principles and rules theretofore held
sacred for the benefit of other nations embarked in quarrels
and wars in which she herself had no concern, at all events
before experience had shown that the existing law was insuffi-
cient. Such a proposition would really amount to saying that
Great Britain was to be held responsible because her law
ought to have been other than it was.
Sir Alexander Cockburn maintained similar views in regard
to what took place at Nassau. He admitted that with the
result of the trial he was anything but satisfied. The vessel
ought, in his opinion, to have been condenuied. The judge
NEUTRALITY: THE GENEVA ARBITRATION. 4143
made a mistake in holding that her equipment, in any part of
the British dominions, for a purpose prohibited by the foreign
enlistment act, would not, so long as the property in her re-
mained in a British subject, form a sufficient ground for con-
demnation in any court of competent authority within whose
jurisdiction the vessel might be found, though no part of such
equipment might have taken place within such jurisdiction.
That she was eciuipped, though not armed for war, not only
when at the Bahamas, but also when she left Liverpool, was
undoubted. The obstacle to her seizure at Liverpool was the
absence of sufficient proof of her being intended for a bellig-
erent, but the character of forfeiture, having once attached to
her, remained permanently affixed, and might be enforced by
proceedings in rem by any competent court within the juris-
diction of the Crown. At the same time Sir Alexander Cock-
burn repelled the imputation of improper motives to the local
officials.
As to the arming of the Oreto at Green Cay, Sir Alexander
argued that there was no proof of negligence on the part of
the British authorities.
As to the (juestion whether Great Britain, even if open to
the imputation of not exercising due diligence in re8i)ect of
the original equipment of the OretOj or of her armiug at Green
Cay, could be held responsible for the acts of the ship after
her entry into Mobile, Sir Alexander Cockburn, while granting
that the right of a belligerent to redress for a breach of neu-
trality under international law would not be alfec*ted by a
judicial proceeding under municipal law, yet contended that
the original equipment of the OretOj though an offense against
the municipal law of Great Britain, was not, there being up
to the time of her arrival at ^N^assau no present intention of
war, an offense <against international law, and that, by her
acquittal at Nassau of the alleged offense against British
municipal law, the original vice became purged and the mat-
ter was at an end. **It might indeed,'- said Sir Alexander,
"be answered that a second offense was committed within the
British jurisdiction by the arming at Green Cay, but here,
again, tliere'' was " no breach of neutrality according to inter
national law, if, owing to the deficiency of the crew, there was
no present intention of applying the ship to the purposes of
war." The effect of this argument was to maintain that the
illegal voyage of the Florida, on which any liability could be
f
4144 INTERNATIONAL ARBITRATIONS.
asserted, came to an end with her arrival at Mobile, if not
with her departure from the Bahamas; but Sir Alexander
Cockburn also contended that Her Majesty's government had
no right to seize the Florida^ or any other cruiser, after she
was commissioned by a belligerent as a ship of war.
The tribunal of arbitration, Sir Alexander
Award. Cockburn dissenting, rendered, in respect of
the Floridaj the following award :
"And whereas, with respect to the vessel called the Florida^
it results from all the facts relative to the construction of the
Oreto in the port of Liverpool, and to its issue therelrom,
which facts failed to induce the authorities in Great Britain to
resort to measures adequate to prevent the violation of the
neutrality of that nation, notwithstanding the warnings and
repeated representations of the agents of the United States
that Her Majesty's government had failed to use due diligence
to fulfill the duties of neutrality;
"And whereas it likewise results from all the facts relative
to the stay of the Oreto at Nassau, to her issue from that port,
to her enlistment of men, to her supplies, and to her armament,
with the cooperation of the British vessel. Prince Alfred^ at
Green Oay, that there was negligence on the part of the British
colonial authorities;
"And whereas, notwithstanding the violation of the neutral-
ity of Great Britain committed by the Oreto^ this same vessel,
later known as the Confederate cruiser Florida^ was neverthe-
less on several occasions freely admitted into the ports of
British colonies;
"And whereas the judicial acquittal of the Oreto at Nassau
can not relieve Great Britain from the responsibility incurred
by her under the principles of international law, nor can the
fact of the entry of the Florida into the Confederate port of
Mobile, and of its stay there during four months, extinguish
the responsibility previously to that time incurred by Great
Britain :
"For these reasons,
"The tribunal, by a majority of four voices to one, is of
opinion —
"Tiiat Great Britain has in this case failed, by omission, to
fulfil the duties prescribed in the first, in the second, and in
the third of the rules established by Article VI. of the Treaty
of Washington."
d. The A lahama^ and her tender ^ the Tmcaloosa,
(For the full record of the arbitration in this case, see Papers
relating to the Treaty of Washington, as follows: American
Case, 1.99, 146; British Case, id. 308; American Counter Case,
NEUTRALITY: THE GENEVA ARBITRATION. 4145
id. 438; British Connter Gase, II. 308, 368; American Argu-
ment III. 80; British Argument, id. 276, 283; Opinion of Count
Sclopis, IV. 75; Opinion of Viscount d'ltajubd, id. 99; Opinion
of Mr. Staempfli, id. 116; Opinion of Mr. Adams, id. 171;
Opinion of Sir Alexander Cockburn,id.446; Award, id. 61.)
The American Case set forth that the Ala-
"*^8tate« ^ hama was a barken tine-rigged man-of-war, of
about 900 tons burden, designed as a scourge
of the enemy's commerce rather than for battle. Her armament
consisted of eight guns. She was built for a Confederate vessel
of war, under a contract signed probably in October 1861, be-
tween Captain Bullock, agent of the Confederate navy, on the
one part, and Messrs. Laird & Co., shipbuilders of Liverpool,
on the other part. During her construction Bullock went on
board of her almost daily, and she was in fact constructed
under his superintendence.
The vessel was launched May 16, 1862, under the name of
the :29(K On June 23 Mr. Adams wrote to Earl Russell, and,
recalling the case of the Florida^ apprised his lordship that
a new and more powerful war steamer was nearly ready to
depart from Liverpool on the same errand, and that the parties
engaged in the enterprise were persons well known in Liver-
pool to be agents and officers of the insurgents; and asked
that such action might be taken as would tend either to stop
the projected expedition, or to establish the fact that its pur-
pose was not hostile to the United States.
On the 4th of July Earl Russell communicated to Mr.
Adams a report from the customs authorities at Liverpool by
which, while it was admitted that the vessel was evidently
intended for a ship of war, it was suggested that the proper
cx)urse would be for the United States consul at Liverpool,
Mr. Dudley, to submit to the collector of the port such evi-
dence as he possessed tending to show that the vessel was
intended for the use of the Confederacy, in order that meas-
ures might be taken under the foreign enlistment act. The
report closed by saying that the officers at Liverpool would
keep a strict watch on the vessel.
On July 9 Mr. Dudley, in obedience to the suggestion of the
authorities, submitted a statement to the collector at Liver-
pool, but the latter pronounced it insufticient, in point of law,
to warrant the detention of the ship, and said that it must be
substantiated by evidence. Mr. Dudley then caused a copy
4146 INTERN A.TIONAL ARBITRATIONS.
of the statement to be laid before Mr. Collier, an eminent bar-
rister, who subsequently became the principal law adviser of
the crown. Mr. Collier advised that the principal officer of
the customs at Liverpool be applied to to seize the vessel with
a view to her condemnation, and at the same time to communi-
cate the fact to the secretary of state for foreign affairs, with
the request that Her Majesty's government would direct the
vessel to be seized, or to ratify the seizure if it had been made.
The collector, continued the Case of the United States,
refused to seize the vessel, and Mr, Dudley proceeded to obtain
direct proof as to her character. On July 21 he laid it, in the
form of affidavits, before the collector at Liverpool, in accord-
ance with an intimation which Mr. Adams had received from
Earl Eussell. These affidavits were transmitted on the same
day to the board of customs at London, with a request for tele-
graphic instructions, as the ship appeared to be ready for sea
and might sail at any time. On July 23 Mr. Dudley went to
London and laid the affidavits before Mr. Collier, who gave it
as his opinion that it would be difficult to make out a stronger
case of infringement of the foreign enlistment act, and that it
deserved consideration whether, if the vessel should be allowed
to escape, the Government of the United States would not
have serious grounds for remonstrance. As time was impor-
tant, Mr. Dudley laid Mr. Collier's last opinion before the under
secretary of state for foreign affairs, who was not disposed
to discuss the matter, and before the secretary of the board
of customs, who said that the board could take no action
without orders from the treasury lords.
The affidavits and the opinion of Mr. Collier were, said the
Case of the United States, also communicated to Her Majesty's
government through the regular diplomatic channels, some of
the affidavits being sent by Mr. Adams to Earl liussell on July
22 and the rest on the 24th. The papers were not considered
by the law officers of tlie crown till July 28. On the evening
of that day they agreed on their report and it was in Earl Rus-
sell's hands early on the 29th. Orders were then immediately
sent to Liverpool to stop the vessel. She left the i)ort that
morning. In an interview on the .'Ust of July Earl Russell
told Mr. Adams that the delay in determining upon the case
of the 290 had most unexpectedly been caused by the sudden
development of a malady of the (Jiieen's advocate, Sir John D,
Harding, totally incapacitating him for business. Earl Rus-
neutrality: THE GENEVA ARBITRATION. 4147
sell said that he would, however, send directions to have the
vessel stopped if she went, as was probable, to Nassaa.
The departure of the vessel from Birkenhead was, declared
the Case of the United States, hastened by the receipt of
illicit intelligence of the probable intention of the government
to detain her. She steamed slowly down to Moelira Bay, on
the coast of Anglesey, where she remained a day and two
nights, no efibrt being made to seize her. During this time a
tug (the Hercules) was permitted by the authorities, though
they were notified of the circumstances, to take to the vessel
from Liverpool about forty men, who, with those already on
board, raised the number of the crew to about ninety. After
the vessel left Moelfra Bay she ran around the north coast of
Ireland and then made for Terceira, one of the Azores, which
she reached on August 10. A few days later the bark Ag-
rippina^ of London, arrived with her armament, coal, and
stores, and on August 20 the steamer Bahama, the same that
had taken the armament to the Florida, arrived with Captain
Semmes and other officers of the Sumter and two 32-pounders
and some stores. On August 24 the Confederate flag was
hoisted, and the vessel, now under the name of the Alabama,
sailed away.
When the Alabama left Liverpool she was, said the Ameri-
can Case, even more completely fitted out as a man-of-war
than the Florida at the time of her departure. Earl Kussell,
in an official note to Mr. Adams, stated that it was << undoubt-
edly true that the Alabama was partly fitted out in a British
port." From Terceira she crossed to the West Indies, again
taking coal from the Agrippina, which had been sent from
England to Martinique for that purpose. She thence passed
into the Gulf of Mexico, destroying merchant vessels of the
United States and the United States war steamer Hatteras.
January 18, 1863, she arrived at Jamaica and was granted
permission to repair. After having been refitted and furnished
with supplies she sailed to Bahia, in Brazil, and thence to the
Cape of Good Hope, where, on her arrival in Table Bay, she
announced that the Tuscaloosa, a wool-laden prize which she
had captured off' the coast of Brazil, would soon arrive as a
tender. In due time the Tuscaloosa arrived, with the original
cargo of wool on board, and anchored in Simons Bay. Kear-
Admiral Sir Baldwin Walker informed the governor that
she was not sufficiently armed for any services other than
5627— VOL. 4 58
4148 INTERNATIONAL ARBITRATIONS.
those of slight defense, and intimated that she was styled a
tender merely for the purpose of evading the probibitiou
against the entrance of prizes and of enabling her to dispose
of her valuable cargo. The governor, acting upon the advice
of the attorney-general, held a different view. The wool was
disposed of to a Cape Town merchant, and was landed, for the
purpose of transshipment to Europe, at a place outside of
British jurisdiction.
The proceedings of the colonial authorities in this inBtance
were, said the Case of the United States, apparently disap-
proved by the home government. But when, on the Tusca-
loosa's coining into port again, after a cruise on the coast of
Brazil, she was seized and the fact reported to London, Her
Majjesty's government ordered her to be restored to the Con-
federate agents.
From Cape Town the Alabama passed into the Indian Ocean.
December 23, 1863. she coaled at Singapore, and on March 21,
1864, less than three months after obtaining that supply, she
returned to Cape Town and began taking in coal again.
The [Jnited States asked the tribunal of arbitration, as to
the Alabama and her tender, to hold the British Government
responsible for the destruction of vessels and their cargoes,
and for the expenses to which the United States was put in
the pursuit of either of the cruisers.
Specifically, the grounds on which this award was asked
were as follows :
1. That the Alabama was constructed, fitted out, and equipped
within British jurisdiction with intent to cruise and carry on
war against the United States, and that Great Britain, having
reasonable ground to believe that such was the intent of the
vessel, did not use due diligence to prevent such construction,
fitting out, or equipping.
2. That, as the construction of the vessel and the construc-
tion of the arras, and the dispatch of the vessel and the dispatch
of the arms, all took i)lace at one British port, the authorities
having had such notice that they must be assumed to have
known the facts, the whole must be regarded as one armed
hostile expedition from a British port against the United
States.
3. That the Alabama^ having been si)ecially adapted to war-
like use at Liverpool, and being intended to carry on war
against the United States, (heat Britain did not use due dili-
NEUTRALITY: THE GENEVA ARBITRATION. 4149
gence to prevent her departure either from Liverpool or from
the colonial ports which she subsequently visited.
4. That Great Britain did not, as Earl Kussell had promised,
send out orders for her detention.
5. That the Alabama received excessive hospitalities at Cape
Town on her last visit, in being allowed to coal in less than
three months after coaling at Singapore.
6. That the responsibility for the acts of the Alabama car-
ried with it responsibility for the acts of her tender.
The facts relating to the construction of the
The BritiBh Case. Alabama as Stated in the British Case, did not,
substantially vary from the facts stated in the
American Case. It had been stated in the case of the Florida
that one of the members of the firm by which the Alabama
was constructed was a member of the House of Commons.
The British Case said that this allegation, if true, would be
immaterial; but Her Majesty's government was informed that
Mr. John Laird, who was a member of Parliament for Birken-
head, and had formerly been a partner in the business, had
ceased to be so before the building of the Alabama. The
building of ships of war for foieign governments had, however,
said the British Case, formed a part of the ordinary business
of the firm. The vessel in question appeared to have been
comi)leted by the builders for delivery in the port of Liverpool
and to have been delivered accordingly; and there was no
reason to doubt that the whole transaction was performed in
the ordinary course of business, though the firm probably
knew of the employment for which she was intended by the
person or persons by whose order she was built.
Competent evidence tending to prove the existence of an
unlawful intent was, said the British Case, first obtained by
the customs officials at Liverpool on the 21st of July 1862, and
came into the possession of Her Majesty's government on the
following day. This evidence was very scanty. Further tes-
timony was obtained on July 23 and July 25. On the evidence
so received it was the right and duty of Her Majesty's gov-
ernment to consult its officials and legal advisers. The illness
of one of these legal advisers occasioned some delay. On July
29 the government was informed that the evidence was suffi-
cient to justify seizure. On that day the Alabama put to sea.
She had not been registered, no application for a clearance w
made, and the intention to carry her to sea was concealed
j^
4150 INTERNATIONAL ARBITRATIONS.
• an artifice. Orders for arresting her were, however, sent by
the government to various places at which she might probably
touch after leaving Liveri)ool for Nassau. She sailed from
England unarmed and with a ('rew hired to work the ship and
not enlisted for the Confederate service. She received the
armament at a distance of more than a thousand miles from
England; either in Portuguese waters or on the high seas. The
guns and ammunition had been exported from England in an
ordinary merchant steamer, which loaded them as cargo, and
sailed with a regular clearance for Nassau.
The Alabama, said the British Case, was commissioned by
the Confederate Government, and commanded and officered by
American citizens. A considerable part of her crew were
British subjects who were induced by promises of reward to
take service in her while she was off" Terceira. After she was
commissioned she was admitted in the character of a ship of
war into the ports of all the countries visited by her; and she
was so received in several British colonies without favor or
partiality. On May 11, 1863, she arrived at Bahia in Brazil,
having previously touched at the Brazilian island of Fernando
de Noronha. About the same time the Florida and the Georgia
also were in Brazilian ports, where they were permitted to
purchase coal and provisions and to refit. The minister of the
United States at Eio de Janeiro warmly contended that the
three vessels were piratical and should bo treated as such,
affirmed that the Alabama while at Fernando de Noronha had
violated the neutrality of Brazil by making prize of American
vessels within the territorial waters of the empire, and insisted
that it was the duty of the Emperor's government to capture
her. In reply the Brazilian Government adhered to the posi-
tion which it had assumed in its circular of August 1, 1861, in
which it refused to consider the Confederate vessels as priva-
teers or to deny them belligerent rights, though it deprived
the governor of the Island of Fernando de Noronha of his office
because he had taken no steps to prevent the Alabama from
making prizes within territorial waters. The Alabama re-
mained at Bahia for eight or nine days. No .serious endeavor
to capture her appeared to have been made by the Government
of the United States. During her whole cruise of more than
two years she was only twice encountered by Fnited States
ships — once in the (lulf of Mexico, when she sank her opi>o-
nent, and again when she eluded the pursuit of the Sa7i Jacinto
at Martinique.
NEUTRALITY: THE GENEVA ARBITRATION. 4151
The American Counter Case called atten-
mnter ^.^
Case.
American Counter ^^^^ ^ ^^^ ^^^^ disclosed by the British Case,
that, altliough the commissioners of customs
knew on July 29 that the Alabama had es(;aped on that
day, it was not till August 1 that the collectors at Holy-
head and Beaumaris received instructions to detain her. On
August 2 the collector at Beaumaris reported that the Alabama
had left Point Lynas on the morning of July 31. If, therefore,
the instructions given on August 1 had been given July 29
the Alabama might have been detained at Point Lynas. The
American Counter Case averred that the evidence showed that
a large i)ortion of the original crew of the Alabama knew quite
well whither they were going. It was also averred that the
United States made great efforts and incurred great expenses
to capture the Alabama.
The British Counter Case stated that Her
"* Majesty's government did not dispute that at
the time the Alabama sailed from England she
was, as regarded the general character of her construction,
specially adapted for warlike use, and that the question for
the arbitrators was whether the British Government had, ac-
cording to the fair and just sense of the words, reasonable
ground to believe that she was intended to carry on war against
the United States, and, having such ground, failed to use due
diligence to i)revent her equipment or her departure.
Tlie British Counter Case contended that it had not been
shown by the United States that, prior to the time when Mr.
Adams laid his representations before Earl Russell, any cir-
cumstances tending to prove that the ship was intended for the
Confederate States were notorious at Liverpool, or ought to
have been known to the British Government or its officers.
The assertion that the British Government, throughout the
war, would originate nothing for themselves, and would listen
to no representations from the officials of the United States
which did not furnish technical evidence for a crimipal prose-
cution was, declared tlie British Counter Case, opposed to facts
disclosed in the Case of the United States as well as in the
Case of Great Britain. It was, however, doubtless true that
neutral governments ordinarily expected to receive informa-
tion from the ministers or consuls of belligerent powers touch-
ing violations of neutrality, since those officials had the keenest
incitement to vigilance in such matters, and were likely to be
the first recipients of intelligence. This had been the general
4152 INTERNATIONAL ARBITRATIONS.
practice of neutral governments, and it had been followed by
tlie United States.
As to the alleged promise of Earl Kussell to send orders to
Nassau for the seizure of the Alabama, the British Counter
Case said that such orders were sent, but that the contingency
contemplated in them did not occur, since the Alabamaj instead
of going to Nassau, went to Terceira; and when she first ap-
peared in British waters she was commissioned as a ship of
war and had been received as such at Martinique, a French
port. As to what took place at Cape Town, the British Coun-
ter Case maintained that the Alahania did not begin coaling at
Table Bay till the 2l8t or the 22d of March 18G4, exactly three
months after she had last coaled at Singapore.
Tiie Argument of the United States called
Ai^ent of the ^^^^^^1^^ ^^ ^j^^ f.^^.^ ^\^^^ ^^ evidence what-
united States.
ever had been produced to show that any
officer of the British Government ever propounded to the
builders of the Alabama^ or to any other i)erson, a direct
question as to the destination of the vessel, and insisted upon
an answer or a refusal to answer, although, long before her
departure, the law officers of the crown had given an opinion
that she must be intended for warlike purposes, and one of
the builders of the vessel, on being inquired of by one of the
officers of the government, did not appear to be disposed to
reply to any question with reference to the destination of the
vessel after she left Liverpool. In April 18()2 the builders
stated to a visitor that the vessel was intended for the
Spanish Government; but inquiries made by the consul of
the United States at Liverpool, through the Spanish consul at
that port, elicited an assurance from the Si)ani8h minister that
the statement Wiis not true. I^o steps were taken by the au-
thorities at Liverpool to ascertain the truth of the statements
submitted by the United States consul at that port. Earl
Russell admitted that the cases of the Alabama and Oreto
were "a scandal and in some degree a reproach" to the British
laws; but the fault, said the American Argument, was not in
the law, but in its execution. The Argument of the United
States also pointed out that after the conclusion, by the Brazil-
ian Government, of its investigation of what the Alabama did
at the Island of Fernando de Noronha, an order was miule
that the vessel should not again be admitted into any port of
the empire.
neutrality: the geneva arbitration. 4153
In the British Argameut the i^^round was
BritiBh Aigament taken that the charge of the United States in
respect of the Alabama reduced itself to the
contention that between the 21st and 20th of July 1862 the
British Government took a litile more time to satisfy itself
that there were grounds sufficient to warrant the seizure than
the United States thouglit was necessary. This contention
made no allowance for reasonable doubts, for deliberation on
difficult questions of law, or for the casual impediments which
were liable to occur in matters of administration. Even if it
should appear that, through the fault or mistake of any sub-
ordinate official of the government, a possibility of detaining
the vessel was let slip without the knowledge of the govern-
ment, this could not be held to afford a foundation for charging
Great Britain with a failure of duty and a grave international
injury. It had not been and could not be shown, in the case
of the Alabama, that the British Government, having reason-
able ground to believe that she was intended to cruise and
carry on war against the United States, failed to use due dil-
igence to prevent her from being fitted out, armed, or equipped
for that purpose within British territory, or from departing
thence after having been specially adapted to warlike use.
Count Sclopis, in his opinion, referred to
Opinion of Count ^he fact that the builders did not attempt to
^?"' disguise the circumstance that the Alabama
was intended for a ship of war; to the promise of the British
Government to keep a special watch upon her, and to the sys-
tem adopted by the customs officials of taking no initiative,
but of always requiring of the United States such formal proof
as was admissible before an English court of law. The cir-
cumstances of the illness of the Queen's advocate could not,
said Count Sclopis, be accepted as an excuse for the long
delay in acting upon the evidence submitted to the British
Government, since there were other counsel, and any delay
was perilous. The British Government had represented the
United States as assuming that that government, with its
various departments, and with its necessarily more or less
complicated methods of action, should act at all times with a
mechanical precision which was not applicable to the practical
business of life. But the circumstances in which the British
Government was placed did not represent the ordinary course
of life. Great interests were at stake; but the measures M
4154 INTERNATIONAL ARBITRATIONS.
takeu for the preservation of English neutrality were neither
very complicated nor overarduous. The case of the 290 was
not an ordinary case. When the departure of the vessel was
ascertained, Earl Eussell, foreseeing that it might not be pos-
sible to arrest her in the waters on the coast of England, where
a search was being made for her, said that he would give
orders for her arrest at Nassau. When she quitted Moelfra
Bay she had a crew of eighty men. She kept for some time
along the Irish Sea, then rounded the north coast of Ireland,
and steered for Terceira, where she arrived on the 10th of
August. Here she was joined by two vessels, which had also
started from English ports, and which brought a supply of
cannon, munitions, and stores. The combined action of these
vessels entailed a joint responsibility. Sir Eobert Peel, in the
House of Commons, April 28, 1830, said : " Was it then to be
contended that no ex))edition was a military expedition, except
the troops had their arms on board the same vessel with themf
If they were on board one vessel and their arms in another,
did that make any difference? Was such a pretense to be
tolerated by common sense?" When the Alabama arrived at
Jamaica she was not arrested, though there were three English
men-of-war in the port: but she was supplied with the means
of repairing her damages, and seven days afterward she steered
for the coast of Brazil. The conduct of the English author-
ities on this occasion was approved by Earl Russell. She was
also permitted to repair at Cape Town. The Tuscaloosa was
also treated at that port as a ship of war, when in reality she
was a prize. In conclusion Count Sclopis expressed the
opinion that the neutrality of Great Britain was gravely com-
promised by the Alabama^ and that that government was
resi)onsible for her acts, as well as for those of her tender,
the Tuscahosa.
Viscount d'ltajuba held that from all the
^^tfitejlt^"^^ facts relating to the building of the 290 at
Liveri)ool, it was evident that Great Britain
had neglected to use due diligence for the fulfillment of its
neutral duties, since, notwithstanding the rei)eated warnings
and representations of the diplomatic and consular authorities
of the United States while the 290 was in course of construc-
tion, no suitable measures were takeu, and those that were at
length adopted were too late to be executed; that after the
escape of the vessel the measures for arresting her were so in-
NEUTRALITY: THE GENEVA ARBITRATION. 4155
complete that they could not be considered sufficient to free
England from responsibility; that in spite of the flagrant in-
fractions of neutrality committed by the J290, this vessel, then
known as a Confederate cruiser under the name of the Alabama,
was again admitted on several occasions iuto the ports of Brit-
ish colonies, whereas she ought to have been proceeded against
in the first British port in which she might have been found;
that Great Britain had thus failed to fulfill the duties pre-
scribed in the rules laid down in Article VI. of the Treaty of
Washington, and was consequently responsible for the acts of
the Alabama and of her tender, the Tuscaloosa.
Mr. Staempfli said it was beyond doubt
Mr. staempfli's ^1^^^ ^he Alabama was fitted out in British
opimon. ports as a vessel of war of the insurgent
States; that the example of the Oreto made it the duty of the
British authorities to be on their guard against acts of that
kind; that they did not in any way take the initiative in in-
quiring into the true state of affairs, even after representations
were made by Messrs. Adams and Dudley; that, after suffi-
cient evidence was furnished, the examination of it was so
delayed, and the measures taken to arrest the vessel were so
defective, that she was enabled to escape just before the order
for her seizure was given ; that the orders to pursue and arrest
the vessel were not given until forty-eight hours afterward,
and were sent only to a few ports close at hand; that no in-
structions to arrest her were sent to any ports out of England
except that of Niissau; that no vessels, even, were sent in
pursuit into the neighboring British waters; that no proceed-
ings were instituted against the persons who h«id enlisted the
crew, or against those who had conveyed her armament on
board, or against those who ha<l ordered or who had built her;
that the disciplinary penalties inflicted on some of her seamen
on their return to England could not be looked upon as a
serious prosecution; that in view of the illegal and fraudulent
origin of the vessel, and the complicity of the insurgent gov-
ernment and its agents, it was the duty of the British author-
ities to seize the vessel in whatever British port she might be
found, and that the British Government had admitted this
duty so far as the port of Nassau was concerned.
As to the defensive argument of the British Government,
that the arming and equipping of the vessel took place in
waters beyond the British jurisdiction, Mr. Staempfli said that, M
4156 INTERNATIONAL ARBITRATIONS.
according to the first rule of the Treaty of Washington, and
according to international law, even a partial equipment for
warlike purposes was not allowable, and that this was admit-
ted by the law officers of the crown in their opinion of July
29, 1862. But, in fact, the armament and original equipment
of the Alabama were prepared within British jurisdiction, and
the division of the operation did not do away with the offense.
Mr. Staempfii also held that the fact of the Alabama having
been commissioned as a cruiser of the Confederate States did
not relieve the British Government from the duty of arresting
her when she subsequently entered a British port. As to the
question of responsibility for the negligence of subordinate
officials, Mr. Staempfli said that while Great Britain could not
be held responsible for indiscretions which might have been
committed by some unknown subordinate, and while an act of
imprudence or negligence on the part of subordinate authori-
ties did not ne(;essarily entail responsibility for the extreme
consequences of such act, yet, when a series of acts of neglect
was in question, each of them became important and must
be taken into consideration. The alleged failure of the United
States to use diligence in pursuing the Alabama^ if such fail-
ure were established, would not, he held, excuse acts of negli-
gence on the part of the British authorities.
Mr. Adams, in his opinion, referred to the
Mr. Adams's Opinion, representations made by him to the British
Government in June 1862, and to the report of
the law officers of the (*rown to the effect that if his representa-
tions were in accordance with the facts, steps ought to be taken
to put the foreign enlistment act in force and prevent the Ala-
bama from (joiny to sea. This was, said Mr. Adams, a great
step in advance of anything that had been done in the case of
the OretOy since it recognized the duty of prevention, and rec-
ommended that proper steps be taken by the authorities at
Liverpool to ascertain the truth, and, if evidence could be
obtained to warrant them in so doing, to proceed at once under
the statute. If this direction had been carried out in its spirit,
the policy recognized by it doubtless would have been effective.
But it was more than doubtful whether it i)roduced the smallest
effect upon the i)arties concerned. Three weeks after the dire<»-
tion was given to the customs authorities at Liverpool to ascer-
tain the truth, not a syllable had been returned to them except
of a negative character. The entire labor of obtaining evidence
NEUTRALITY: THE GENEVA ARBITRATION. 4157
rested upon the agents of the United States. The reports made
by the collector of customs at Liverpool tended to show that
he was in sympathy with the designs of the insurgents and not
unwilling to accord to them all the indirect aid which could be
supplied by a purely passive policy on his part. As to the
causes alleged for the delay of the law officers of the crown
in rendering an opinion on the evidence submitted toward the
end of July, Mr. Adams said it was sufficient to say that the
omission to act in season was due to causes wholly within the
province of Her Majesty's government to control, and that the
failure was one which must entail responsibility for the great
injuries that ensued, not upon the innocent parties whom it was
the admitted duty of that government to protect, but upon
those througli whom the injuries became possible.
The vessels that took out the Alabama' h armament, said Mr.
Adams, were also British, and the great fraud reached its full
accomplishment under the British flag.
Passing over the minor details of the mode in which supplies
of coal were obtained from British sources, Mr. Adams referred
to the fact that Captain Semmes, after sinking the U. S. gun-
boat Hattermj was compelled to take the prisoners on board,
and that, although it was at a considerable distance from his
actual position, he decided that his best chance of a favorable
rexjeption would be in a port of the kingdom whose laws had
been so dexterously detied. He accordingly made his way, not
without great difficulty, to Port Royal, in Her Majesty's island
of Jamaica. The prisoners were landed and repairs were per-
mitted to be made. Approbation of these acts was granted by
a letter from Mr. Hammond, on behalf of Earl Russell, though
not without reluctance, for it was followed by an injunction to
get rid of the vessel as soon as possible. Nevertheless, the
evil was done, and Her Majesty's government appeared practi-
cally to have given their formal assent to the principle that
success sanctifies a f rated. Though orders were freely given for
the detention of the vessel at any of the colonial ports at which
she might arrive, the first time she actually appeared she was
received with all the honors due to the marine of a recognized
belligerent power, without the smallest manifestation of dissat-
isfaction with the gross violation of laws that had entailed upon
Her Majesty's government a grave responsibility to a power
with which she was at peace. Her Majesty's government thus
failed to fulfill the duties set forth in the Treaty of Washington.
i
4158 INTERNATIONAL ARHITRATIONS.
As to the Tuscaloosa^ Mr. Adams held that the British Gov-
ernment was responsible for her acts.
Sir Alexander Cockburii said that the pre-
*^v *f /^ ^'. ^ "tension put forward by Mr. Dudley, that as
bum's Opinion. f ^ « . , \
soon as the agent of a foreign state declared his
conviction that a vessel was being built for another belligerent,
it became the duty of the neutral government to call on the par-
ties engaged in building her to show that her destination was
lawful, and, if they did not, to seize her, was one which could
not be admitted. But, it was a very different thing, he ad-
mitted, to say that, when persons capable of giving evidence
were expressly named, and sources of information weie iwinted
out from which the truth might be ascertained, the authorities
were to sit with arms folded and do nothing toward satisfying
themselves whether the vessel was one the unlawful purpose
of which it was their duty to frustrate by seizure. Although
the British Government had no i)ower to compel shipbuilders
to explain the destination of a particular vessel, it might, in a
case of suspicion, apply to them to relieve the government
from its embarrassment by stating for whom the vessel was
being built, and, if an answer were given, its truth could
generally be tested. If all explanation were refused, or if that
which was given turned out to be untrue, the evidence against
the vessel would be strongly confirmed. But no official inquiry
was ever addressed to the Messrs. Laird; nor was any attempt
made to utilize the references to persons specified by Mr. Dud-
ley. The evidence obtained by Mr. Dudley established a
strong case against the vessel and, if it could be relied on,
afforded sufficient reason for seizing her. Yet the authorities
at Liverpool took no action upon it. There was abundant
evidence to make out a prima facie case, and of that opinion
were the law officers of the crown, as shown by their report of
July 29. ITnfortunately, the report of the law officers came
too late.
Upon these facts, said Sir Alexander Cockburn, it appeared
to him impossible to say that in respect of the Alabama there
was not an absence of due diligence on the part of the British
authorities. The delay whi(;h occurred in the furnishing of
the last report of the law officers was no doubt to be <attributed
to the illness of the Queen's advocate, and the delay arising
from such an accident could not properly be attributed to a
want of "due diligence" in the government. A want of due
NEUTRALITY: THE GENEVA ARBITRATION. 4159
diligence was, in his opinion, to be found further back. He
entirely agreed with Sir Eobert Collier that it was the duty of
the collector of customs at Liverpool to have detained the
vessel as early as the 20th of July. The course which ought
to have been taken was plain and unmistakable, but unfortu-
nately it was not pursued.
The vessel having escaped through want of due diligence in
that department of the government to which it specially apper-
tained to seize her, the entire British Government, and through
them the British people, said Sir Alexander Cockburn, became,
by necessary consequence, involved in a common liability;
though, as the escape was, in the event, practically speaking,
the result of an unfortunate and unforeseen accident, when
the British Government was desirous of doing its duty, it
might deserve serious consideration whether the tribunal
should award to the United Stiites damages to the full extent
demanded, as if the result had arisen from negligence alone.
The want of diligence, however, said Sir Alexander, did not
stop with the fact of the Alabamans escape from Liverpool.
The delay in communicating the report of the law officers of
July 29 to the commissioners of customs till the afternoon of
July 31, by which time the Alabama was beyond the reach
of British jurisdiction, and the course of the collector of cus-
toms at Liverpool, in spite of the evidence which had passed
through his hands, in permitting the tug Hercules to take out
the crew, gave further ground for the complaint of the United
States of a want of official activity.
As to the arming of the Alabarna at Terceira, Sir Alexander
thought it fairly open to contention that, under the circum-
stances, the whole transaction should be regarded as one
armed hostile expedition issuing from a British port, or, at all
events, that the ulterior purpose of arming, though out of
British jurisdiction, gave to the equipment of the vessel
within that jurisdiction the character of an equipment with
intent to carry on war. On the whole, said Sir Alexander
Cockburn, he agreed with the rest of the tribunal in thinking
that, in respect of the Alabaynaj the want of due diligence
was established by the facts.
As to the reception of the Alabama at Jamaica, the same
question, said Sir Alexander, [irose as in the case of the
Florida^ whether her commission as a ship of war of the Con-
federate States gave her an immunity from seizure for a prior
4160 INTERNATIONAL ARBITRATIONS.
violation of British law. But, this question, he declared, it
was not necessary to consider in the case of the Alabama^
since the arbitrators were all agreed that the British Govern-
ment was liable by reason of the want of due diligence in not
preventing her departure. The Alabama was, however, since
she had been commissioned as a ship of war by a belligerent,
properly received as such at Jamaica and afterward at Cape
Town, and he did not suppose that the charge, which seemed
to be founded on a miscalculation of dates, that the Alabama
took coal at Cape Town two days less than three months after
she had obtained a supply at Singapore, would be insisted
upon by the United States.
As to the question of the Alabamah tender. Sir Alexander
Gockburn said that on the whole he was disposed to think,
though not without some doubt as to whether the damage was
not too remote to found a legal liability, that, the mischief
done by the Tuscaloosa being the direct consequence of the
equipment of the Alabama^ those wbo were answerable for
the one must be answerable for the other. He therefore
acquiesced in the decision of the tribunal in respect of the
Tuscaloosa, as well as of the Alabama.
The award of the tribunal of arbitration
Award. was as follows:
"And whereas, with respect to the vessel
called the Alabama, it clearly results from the facts relative to
the construction of the ship at first designated by the number
'290' in the port of Liverpool, and its ecjuipment and arma-
ment in the vicinity of Terceira through the agency of the
vessels called the Agrippina and the Bahama, dispatched
from Great Britain to that end, that the British Government
failed to use due diligence in the performance of its neutral
obligations; and especially that it omitted, notwithstanding
the warnings and ofiBcial representations made by the diplo-
matic agents of the United States during the construction of
the said number '290,' to take in due time any effective meas-
ures of prevention, and that those orders which it did give at
last, for the detention of the vessel, were issued so late that
their execution was not ])racticable;
"And whereas, after the escape of that vessel, the measures
taken for its pursuit and arrest were so imperfect as to lead to
no result, and therefore can not be considered sufficient to
release Great Britain from the resi)onsibility already incurred;
"And whereas, in spite of the violations of the neutrality of
Great Britain committed by the '290,' this same vessel, later
known as the Confederate cruiser Alabama, was on several
occasions freely admitted into the ports of colonies of Great
neutrality: the geneva arbitration. 4161
Britain, instead of being proceeded against as it ought to have
been in any and every port within British jurisdiction in which
it might have been found;
'^And whereas, the government of Her Britannic Majesty
can not justify itself for a failure in due diligence on the plea
of insufliciency of the legal means of action which it i)0ssessed :
^^ Four of the arbitrators, for the reasons above assigned, and
the fifth, for reasons separately assigned by him,
"Are of opinion —
''That Great Britain has in this case failed, by omission, to
fulfil the duties prescribed in the first and the third of the rules
established by the Vlth article of the Treaty of Washington."
€, The Betributioti,
(For the full record of the arbitration in this case, see Papers
relating to the Treaty of Washington, as follows: American
Case, I. 156; British Counter Case, II. 341; American Argu-
ment, III. 140; Opinion of Viscount d'ltajubd, IV. 101; Opinion
of Mr. Staempfii, id. 138; Opinion of Mr. Adams, id. 217;
Opinion of Sir Alexander Cockburn, id. 531; Award, id. 62.)
The Case of the CJnited States set forth that
"® statL *^® Retribution was a steam propeller, which
was seized by the insurgents in the Cape Fear
Kiver, which she had entered in stress of weather. Her
machinery was taken out and she was converted into a schooner,
and cruised about the Bahama Banks. On December 19, 1862,
she captured near the Island of Santo Dommgo the United
States schooner Hanover. This prize she took to Long Cay, in
the Bahamas, and there sold the cargo without previous ju-
dicial process. The colonial authorities claimed that they were
deceived, and that they supposed that the person making the
sale was the master of the vessel. The person who procured
the entry of the Hanover and effected the sale of her cargo was
one Vernon Locke, a Nova Scotian. He was indicted and
admitted to bail in the sum of X200. The United States were
not aware that he was ever brought to trial. On February 19,
1863, tbe Retribution, when off Castle Island, one of the Baha-
mas, captured the American brig Emily Fishtr, freighted with
su^ar and molasses. This prize was also taken to Long Cay,
and, notwithstanding the protests of the master, and m the
presence of a British magistrate, was despoiled of her r»argo, a
])ortion of which was lan<led and the remainder destroyed.
The Uetribution then went to Nassau and, under the assumed
name of the Etta, was sold. The United States asked for an
§
4162 INTERNATIONAL ARBITRATIONS.
award iu respect of the Retribution^ especially on the ground
that ill the case of each of the vessels that were captared the
acts complained of were done within Her Majesty's jurisdiction.
The British Counter Case observed that it
Britiah Counter Case, was not alleged that the Retribution received
any outfit or eciuipment in or from British
territory. The claims made on account of the vessel were
obviously of a different class from those "generally known as
the Alabama claims," and could not properly be reckoned
among them. Her Majesty's government, however, though
it might on tliis ground refuse to enter into any discussion of
the case, preferred to state the facts so far as it was acquainted
with them. When the schooner Hanover arrived at Long
Cay her papers were regular, and it was in the name of the
master that the person who represented himself to be the
master conducted all the transactions at that place. There
was no circumstance to suggest a doubt as to his identity or
the truth of his story. Some words casually let fall by a
drunken seaman, after the supposed master had left the
island, which he did by another vessel, leaving the Hanaver
under the command of the mate, first gave rise to a suspicion
that he had been passing under a false name; but there was
no reason to suspect that the vessel had been a prize. No
intimation of the circumstances ever reached the colonial gov-
ernment till March 11, 1863. Locke was afterward twice
arrested at Nassau for his offense. On the first occasion he
forfeited his bail and left the island; on the second he was
brought to trial, but was acquitted for want of evidence,
efforts to secure the presence of some witnesses on board of
the Hanover or of the Retribution at the time when the cap-
ture took place having failed. While Locke was in prison
awaiting his trial, application was made by the United States
for his extradition on a charge of piracy having no connection
with the case of the Hanover; but it did not appear that the
Government of the United States made any attempt to pro-
duce the evidence which was required by law to support the
demand.
As to the case of the Emily Fisher, Her Majesty's govern-
ment, said the British Counter Case, now heard of it for the
first time. No complaint appeared to have been made to
the colonial government about the vessel. It was possible
that, on the facts stated, supposing them to be true, the own-
NEUTKALITY: THE GENEVA ARBITRATION. 4163
ers of the ship and cargo might have been entitled to legal
redress against the persons concerned in defraading them of
their property. But Her Majesty's government denied that
the facts, if proved, argued any failure of international duty
on the part of Great Britain or furnished any evidence of
such a failure.
Viscount d'ltajubd expresses a formal opin-
^^T^'^jf^^^^^ ion to the effect that Great Britain had not
failed to fulfill any duty of neutrality in respect
of the Retribution^ and that she was not responsible for the
acts imputed to that vessel.
Mr. Staempfii held that, as to the Retribution^
\^' ^^ * the British authorities were not responsible in
Opinion.
the case of the Hanover^ since they were de-
ceived in regard to the entry and sale of the prize at Long
Cay, and since, from the manner in whitth the fraud was com-
mitted, they could not be accused of culpable negligence. Nor
could any responsibility be attached to the subsequent acquittal
of Locke, inasmuch as it was not shown that there were any
evident defects in the proceedings or the judgment.
As to the Emily Fisher^ it appears, said Mr. Staempfii, that
in British jurisdiction, by means of a conspiracy between the
captain of the Retribution and some of the crew of certain
wrecking vessels, exactions were practiced on the Emily Fisher
after she had been captured and brought into the x>ort of Long
Cay, and that the authorities were aware of it, the affair having,
so to speak, taken place before their eyes; that, notwithstand-
ing these facts, the authorities did not take any steps either to
afford efficient protection or to institute judicial proceedings
or to report to their superiors what was taking place; that,
moreover, and as a sequel to these acts, on April 10, 1863,
seven weeks after the transactions respecting the Emily Fisher
had occurred, the sale and change of name of the Retribution
took ])lace, and that these iicts were registered by the author-
ities at Nassau. As to the objection that Great Britain was
not made iicquainted with what took place till ten years after
it occurred, Mr. Staempfii thought that this was due to the
neglect of the local authorities to interfere officially, or to
report to their superiors.
Mr. Staempfii therefore held that Great Britain had in<*urred
responsibility in respect of the Emily Fisher^ but not in respect
of the Hanover.
5627— VOL. 4 59
4164 INTEENATIONAL ARBITSATIONS.
Mr. Adams pointed out tbat a day or two
Mr. Adinu'i Opinion, after the entry of the Hanover at Long Cay, tbe
autliorities, byreasou of some words dropped
by an iotoxicated sailor, were led to suspect falsehood, and to
examine the mainfests of the cargo more closely, and that on
inspection it became apparent that some of the Bignatores on
tbe manifests were forced, and that the captain of the vessel
bad been falsely personated. It would seem to have been the
duty of tbe local authorities to report this grave offense offi-
cially to tbe authorities at Nassau, whither both tbe Retribution
aud the Hanover, and the ofRcera of the Retribution, jnclading
Locke himself, had gone. But not a whisper regarding tbe
extraordinary transaction seemed to have been commnnicated
to anybody in authority at Nassau; nor was it likely that any-
thing would ever have been disclosed by the authorities at
Long Cay if the ageiit of the underwriters of the Hanover had
not, on April 20, addressed to the governor a remonstrance
against the unlawful proceedings, and a desire for an investi-
gatioD. Tlie Retribution was then at Kassau, and bad there
been received and permitted to remain as a ship of war of the
insurgent States, without a word of remonstrance or even of
uoticc by the authorities, and in spite of instructions of Her
Majesty's government that no ship of war or privateer beloug-
ing to either of the belligerents should be permitted to enter
or remain in any port or water of the Bahama Islands, except
by special leave of tbe lieutenant-governor, or in case of stress
of weather. On therepresentation^madeinbebalf of the under-
writers, the attorney-general gave it as his deliberate opinion
that none of the parties bad rendered themselves criminally
liable, though lie bad made no attempt to investigate the facts
of tliecaKe. ]^othiug seemed to have been said to tbe collector
at Long Cay as to hi.s failure to perform liis positive duty.
As to tbe case of the brig Em ily Finher, Mr. Adams observed
that when she was seized by the Retribution at Castle Island
several British wrecking schooners were lying at anchor under
the land, and that L<Ktke consulted with the captains of these
wreckers, with the result that they took the brig and ran her
on shore, and pitiieeded to unload her carjjo of sugar. The
master of tbe Kniily Finher applied to the authorities for assist-
ance, but they dedinetl to give him any till he bad secured a
release from the wreckers for salvage. The result was that
by paying one-half of the value of the cargo and one-third of
NEUTRALITY: THE GENEVA ARBITRATION. 4165
the value of the vessel ho obtained her restoration^ divested
of almost everything movable. All this time the brig was
lying under the guns of the Retribution^ and the authorities to
whom the master appealed, while declaring themselves wholly
unable to protect him, in fact gave the transaction their sanc-
tion, and apparently made no report of it. If it was alleged
that the offenses in question were the offenses of irresponsible
parties for which it was not customary to hold governments
liable, the answer was that when the Retribution made her
appearance in the port of Nassau, after having executed the
outrages described, she was treated as a Confederate vessel of
war, the collector declaring that she did not enter as a trader.
She was dismantled and her hull was sold at public auction.
It nowhere appeared to whom the proceeds were credited, nor
did it appear that the governor took the smallest notice of so
material a transaction. Nor was it likely that any more
inquiries would have been made in any quarter if the case bad
not been brought by Mr. Seward, Secretary of State of the
United States, to the attention of the British Government.
In response to Mr. Seward's representations, the governor at
Nassau reported that he was convinced that no suspicions
were entertained by any official of the government as to
the character of the Retribution or of her master till it
was too late to act on them. Nevertheless, the rejwrt which
he sent seemed to admit that he himself, the collector, and
another person, entertained so great doubts of the truth of
the statements made by Locke that it was their positive
duty to have made an investigation. The unsatisfactory
nature of the governor's report was plainly intimated by
Mr. Seward when he received it, and was also signified to
the governor by the Duke of Newcastle on behalf of the gov-
ernment at home. This stimulated the authorities to efforts to
seize and prosecute the chief offenders, who were still hanging
about the place. It was clear that they were British subjects
;?uilty of something very like piracy, as well as of forgery and
fraud. Of the judicial proceedings that followed, Mr. Adams
said he desired to speak with the moderation due to the courts
of a foreign nation. But the arbitrators "had a duty to the
parties before the tribunal to state their convictions of the
exact truth, without fear or favor.'^ The fact was too i)lain
that the population of Nassau and its vicinity had become so
completely demoralized by familiarity with the fraudulent i
4166 INTERNATIONAL ARBITRATIONS.
transactions constantly passing before their eyes, as well as by
the unusual profits accruing therefrom tothemselves, that they
were neither in a condition nor in a disposition to visit with
harshness any crime, however flagrant, that could be associated,
however remotely, with the operations of the insurgents in
their waters, and that the spirit then prevailing utterly i)er-
verted the course of justice. Mr. Adams said that it appeared
to him to be clear that the collector of Long Gay failed in due
diligence, when he omitted to give any report whatever to the
governor of the flagrant acts committed by Locke in forging
the signature and attempting to represent the person of an-
other man, as well as in conspiring, in defiance of the author-
ities, to obtain false salvage by force of arms of an innocent
party; that the magistrate of Inagua failed indue diligence
when he omitted to give immediate notice to the governor of the
facts which he reported only when specially called upon by him
three weeks afterward ; that the governor failed in due dili-
gence when he omitted to take notice of the presence in the
port of a vessel of the insurgents, which was expressly pro-
hibited to enter it by the instructions of the government at
home; that he further failed in due diligence in informing him-
self of the reasons which had brought that vessel, as well as
its prize, the Hanover j into the port; that the attorney-general
failed in due diligence when he gave his first opinion, declin-
ing to act against the men whom he had reason to believe t<.>
be criminals, as well as in the subsequent proceedings which,
he instituted against them in court; and that, for these acts of
omission and commission, the nation injured could look for
reparation only to the government holding the supreme au-
thority over the territory wherein the acts occurred. It was his
conclusion that a liability was clearly imposed on Her Maj-
esty's government in the case of the Retribution^ under the
terms of the Treaty of Washington.
Sir Alexander Cockburn reviewed the case
v« , ^^ ' ^ of the lietribntion at length, and reached the
bum's Opinion. ^ '
conclusion that there was no ground whatever
for saying that, either in respect of the Hanover or of the
Emily Fisher^ could any charge of a want of due diligence be
sustained against the British authorities.
The tribunal of arbitration, by a majority of
Award. three to two, decided that, in respect of the
Eetributionj Great Britain had not failed, by
any act or omission, lo ixvV^W ^m^ ot t\:ift datiea prescribed by the
NEUTRALITY: THE GENEVA ARBITRATION. 4167
three rules of Article VI. of the Treaty of Washington, or by
the principles of international law not inconsistent therewith.
/. The Georgia,
(For the full record of the arbitration of this case, se^ Papers
relating to the Treaty of Washington, as follows: American
Case, I. 105, 156; British Case, id. 354; American Counter
Case, id. 439; British Counter Case, II. 321,358; American
Argument, III. 104; British Argument, id. 281, 283; Mr.
Evarts's Special Argument, id. 458; Opinion of Viscount
d'ltajubii, IV. 101; Opinion of Mr. Adams, id. 187; Opinion
of Sir Alexander Cockburn, id. 477; Award, id. 52.)
As stated in the Case of the United States,
^"* iBtML^""^^ *^® ^^^^(^^^ ^a« ^ s^^^^ steamer of about 500
tons register. She was built for the Confed-
erate government at Dumbarton, below Glasgow, on the
Clyde. She was launched on the 10th of January 18()3, and
was christened by ** a Miss North, daughter of Captain North,
of one of the Confederate States, the Virginia.^ It was noto-
rious that she was constructed for the Confederate service.
On March 27 she left for Greenock, under the name of the
JapaHy on a pretended voyage to China.
The vessel was registered in the name of Thomas Bold, of
Liverpool, a member of the house of Jones & Co., and a near
connection of Maury, who afterward commanded her. Early
in April she shipped seventy or eighty men who had been sent
by Jones & Co. from Liverpool. On the 6th of April the
vessel reached the coast of France, and on the following day
sighted the steamer Alar with arms, ammunition, and supplies
under the charge of a partner in the house of Jones & Co. By
the night of April 10, nine breech-loading guns and various arms
and munitions of war were put on board and the Confederate
flag was hoisted. Maury, an office of the Confederate States,
produced his commission, and the Japan was changed into the
Georgia, Fifteen sailors who refused to cruise in her were
transferred to the Alar, and the Georgia continued her cruise.
The Alar had cleared with her cargo from Newhaven.
April 8, 1863, Mr. Adams called Earl Hussell's attention to
the dei)arture from the Clyde and Newhaven of this hostile
expedition, and exj)re8sed a belief that the destination of the
vessel was the Island of Alderney. Earl Kussell promised an
immediate inquiry and the adoption of the most effective A
measures of which the law admitted for defeating any attempt
4168 INTERNATIONAL ARBITRATIONS.
to fit out a belligerent vessel from a British port. If men-of-
war had been dispatched from Portsmouth and Plymouth on
April 8, the vessel might, said the Case of the United States,
have been seized, and Her Majesty's government would have
exercised only the same powers as were used against General
Saldanha's expedition, arrested at Terceira in 1827. This was
not done, and the vessel escaped. From April 1 till June 23,
1863, the Georgia^ while carrying on war against the United
States, retained her British register.
On May 1, 1864:, the Georgia reappeared at Liverpool. By
this time Mr. Adams had furnished the British Government
with papers which showed that Jones & Co. kept a regular
enlistment office for the Confederacy at that port; and the
Georgia had in the mean time been destroying merchant vessels
of the United States and had called at various ports, including
Cherbourg, where she arrived on October 28, 1863, and where
it was said that she was furnished with a number of new sea-
men sent out by Jones & Co. Yet, when the Georgia returned
to Liverpool she was allowed to remain there. Mr. Adams
addressed an inquiry on the subject to Earl Bussell and
referred to the rules of January 31, 1862, limiting the stay of
belligerent vessels; and later he informed Earl Eussell that he
was advised that a sale of the Georgia had been made by the
agents of the Confederacy at Liverpool, and, on behalf of the
Government of the United States, declined to recognize the
validity of the sale. Meanwhile the vessel went into dock
at Birkenhead and had her bottom cleaned and her engines
overhauled. The Confederate agents went through the form
of selling her to a person who was supposed to be in collusion
with them. Mr. Adams reported these circumstances to Earl
Bussell, who said that the evidence failed to satisfy him that
the Georgia would be used again for belligerent purposes, but
that Her Majesty's government had given directions that in
the future no ship of war of either belligerent should be allowed
to be brought into any of Her Majesty's ports for the purpose of
being dismantled or sold. A few days later the Georgia, hav-
ing sailed from Liverpool, was captured by the United States
man-of-war Niagara.
The British Case said that the Georgia was
The British Case, not, when she sailed from Greenock, either
fitted out, armed, or equipped for war, or
specially adapted to warlike use. Apparently she was in-
NEUTRALITY: THE GENEVA ARBITRATION. 4169
tended for a ship of commerce. She turned out to be unfit for
a cruiser, and for this reason was dismantled and sold after
having been at sea about nine months, exclusive of the time
during which she remained at Cherbourg and Bordeaux.
When she sailed from British jurisdiction under the name of
the Japauy she was cleared in the customary way for a port in
the East Indies. She was advertised at the Sailors' Home in
Liverpool as about to sail to Singapore, ai\d her crew were
hired for a voyage to that or some intermediate port; and they
a])peared to have been under the belief that that was her desti-
nation until they reached the coast of France. She was
armed and equipped in French waters. The British Govern-
ment had no knowledge or information whatever about her
previous to the receipt of Mr. Adams's note of April 8, when
she was in French jurisdiction. She was received as a ship of
war of the Confederate States in the neutral ports visited by
her, particularly in those of Brazil and France. After having
been dismantled and sold in a British port, she was captured
by a United States cruiser as having been a ship of the Con-
federate States, and incapable of being transferred during the
war to a British subject. Her Majesty's government, while it
saw no reason to doubt that the sale was bona Jide, did not
dispute the right of the United States to capture the vessel
for the purpose of submitting the validity of the transfer to the
judgment of a prize court.
Mr. Adams said that the vessel was con-
Opinion of Kr. Adams, structed in such a manner as to excite very
little suspicion of the purpose for which she
was intended, and it was not until the 8th of April, six days
after her departure from British jurisdiction, and three days
after the evasion of the Alar, that he appeared to have had
within his control the requisite means for making a remon-
strance to Her Mj^jesty's government. It was due to Her
Majesty's government to say that all it could do under the
peculiar circumstances it tried to do. Mr. Adams had pointed
out the Island of Alderney as the place of meeting of the Japan
and the Alar. On this suggestion Earl Eussell took the then
exceptional step, in the prosecution of preventive measures, of
causing a ship of war to be ordered from Guernsey to Alderney
with a view to prevent any attempt that might be made to
execute the project of armament within the British jurisdic-
tion. Had Her Majesty^s government attempted to go further
i
4170 INTERNATIONAL ARBITRATIONS.
it would have been of no use, as the vessel had proceeded to
the jurisdiction of France.
It had been suggested in the Oase of the United States, said
Mr. Adams, that Her Majesty's government might have seized
the vessel within the French jurisdiction, and the case of the
Terceira expedition was cited as a precedent; but it seemed to
him that the Government of the United States would scarcely
be ready to concede the right of a foreign power to settle ques-
tions oi justice within its jurisdiction without its knowledge or
consent. Subsequently, the parties concerned in the enlist-
ment of the crew at Liverpool were prosecuted and convicted.
Upon a careful review of the facts, Mr. Adams said he could
not perceive that Her Majesty's government had made itself
in any way liable for failing to use due diligence to prevent
the fitting out and arming of the vessel.
As to the subsequent reception of the Georgia at Oape Town
as a legitimate ship of war belonging to a recognized belliger-
ent, Mr. Adams said he had already expressed his regret, in
the case of the Florida and of the Alabamay that this mode of
proceeding should have been adopted in regard to vessels
which had been guilty of a llagrant violation of the laws of
the kingdom. But, however this might be. Her Majesty's
government had decided otherwise, and the Georgia was per-
mitted to remain at Simon's Bay for a fortnight, repairing
her decks and receiving supplies of provisions. It had been
argued that on this ground Her Majesty's government had
been made liable, under the second rule of the Treaty of Wash-
ington, for permitting one of its ports to be made a base of
operations against the United States by a vessel which had
issued from the kingdom in defiance of its laws as a hostile
cruiser. In tliis view, however, he could not concur. The
vessel had escaped from England under circumstances which
involved no neglect or failure of duty on the part of the gov-
ernment. If, on arriving at an English port, furnished with
a regular commission .is a vessel of a recognized belligerent,
Her Majesty's government determined to recognize her in that
character, he could not call in question its right to do so on its
responsibility as a sovereign power. This was a right he should
not consent to have drawn in question in any case similarly
decided by the United States. It a])peared to liini on the same
footing as the original recognition of belligerency, a step
which he also regretted to have been taken, but which he
neutrality: the geneva arbitration. 4171
never doubted the right of Her Majesty's goveriunent to take
whenever it should think proper.
As to the course of the British Government in permitting
the Georgia to be sold and turned into a merchant vessel at
Liverpool, Mr. Adams said that he could not perceive the
importance of tlie question, since the British Government
recognized the right of the belligerent to dispute the validity
of the operation.
In view of all the facts, Mr. Adams expressed the opinion
that Her Majesty's government had not incurred any respon-
sibility for damages in the case of the Georgia.
Sir Alexander Cockburn reviewed the case
Award. at length and reached the same conclusion.
Count Sclopis, Viscount d'ltajubd, and Mr,
Staempili did not deliver opinions in this case.
The tribunal of arbitration unanimously held that, in respect
of the Georgia^ Great Britain had not failed by any act or
omission to fulfill any of the duties prescribed by the three
rules of Article VI. of the Treaty of Washington or by the
principles of international law not inconsistent therewith.
g. The Tallahassee^ or the Olvstee.
(For the full record of the arbitration in this case see Papers
relating to the Treaty of Washington, a« follows: Ameri-
can Case, I. 163; British Counter Case, II. 339; American
Argument, III. 143; Opinion of Viscount d'ltajub^, IV. 101;
Opinion of Mr. Adams, id. 215; Opinion of Sir Alexander
Cockburn, id, 530; Award, id. 62.)
The Case of the United States set forth that
caae of the United ^^^ Tallahassee W5VS a British steamer, fitted
out from London, to play the part of a p: iva-
teer out of Wilmington, North Carolina. Her original name
was the Atlanta, under which she arrived at Bermuda from
England on April 18, 1864. She made two trips as a blockade
runner between Bermuda and Wilmington, and then went out
for a cruise as a vessel of war. Her captures were principally
made under the name of the Tallahassee. Some were made
under the name of the Olustee, On August 19, 1864, she en-
tered Halifax, after destroying several vessels near Cape Sable.
The United States consul at Halifax reported her as an iron
double-screw steamer of about 600 tons burden, and having
about 120 men. Upon her arrival the commanding officer called
4172 niTBRNATIONAL AEBmUTIOlfB.
upon the admiral and the lieutenant-governor. He obtained
about 120 tdna of ooal, which was less tluui he aoiiifht, and
which was insufficient to enable him to make a contemidated
cruise. The vessel was able to reach Wilmington, where the
ajiparently remained for some months. January 13, 1865, she
arrived in Bermuda again, under the name of the Chameletm.
On the 10th she sailed with a cargo for Liverpool, where, at
the close of the war, she was claimed by the United States.
The United States asked for an award on the ground that the
vessel was fitted out in London to be used as a privateer from
Wilmington ; that she went out from Wilmington with what
purported to be a commission from the insurgent authorities,
and that she preyed upon the commerce of the United States.
The British Counter Case stated tiiat Her
*^^^*" M^esty's government had little inibrmation
respecting the earlier history of the TiMakaS'
seej beyond what might be gatliered from documents preeented
to the arbitrators by the United States. There was no pre-
tension that the vessel was specially adapted within British
territory for warlike use, nor had she any such special adapta-
tion. In the summer of 1864, when the greater part of the
Southern seacoast had fallen into the hands of the United
States, the Confederate government appeared to have tried the
experiment of putting guns into one or two blockade runners
and sending them out to cruise. Subsequently, the Tallahiu-
see wiiH reconstructed into a ship of commerce, which it was
com{>eteiit for the government of either belligerent to do, and
in that character she was suHered to enter and remain in
British ports. But neutral i)owers could not be called upon to
exclude a merchant vessel from their ports on account of her
former employment, or to treat her otherwise than as a ship
of commerce, if there was no reason to doubt that she was no
longer in commission and armed for war. Indeed, no specific
failure of neutral duty was alleged against Her Majesty's gov-
ernment in respect to the TaUahoHsee,
In the Argument of the United States it was stated that, the
United States having had reason to believe that the TaUaluutee
had been armed at Bermuda, made a complaint to the British
Government on the subject.
Viscount d'ltajuba expressed aformalopin-
Decision. .^^^ ^^ ^^^ ^^^^^ ^^^^ ^^^^^^ Britain had not^
in respect of the Tallahassee, or Olusteey failed to fulflU any of
the duties of neutrality.
neutrality: the geneva arbitration. 4173
Mr. Adams expressed an opinion similar to that of Viscount
d'ltajub^.
Sir Alexander Cockburn, after reviewing the facts, said that
the claim ought never to have been presented to the tribunal.
The tribunal of arbitration unanimously held that Great
Britain had not, in respect of the Tallahasseej failed by act or
omission to fulfill any of the duties of neutrality.
h, Tlw Chiekama\iga,
(For the full record of the arbitration in this case see Papers
relating to the Treaty of Washington, as follows: American
Case, I. 164; British Counter Case, II. 339-356; American
Argument, III. 145; Opinion of Viscount d'ltajnb^, IV. 101;
Opinion of Mr. Adams, id. 214; Opinion of Sir Alexander
Cockburn, id. 527; Award, id. 52.)
The Case of the United States set forth that
****8tat^ ^ ^^^ (7/itcAawai*^a, like the Tallahassee^ was
built as a British blockade runner. Her orig-
inal name was the Edith. Shearrived at Bermndafrom England
on April 7, 1864. On the 23d of the following June she sailed
for Wilmington, North Carolina, from which port she brought
a cargo of cotton. She was owned by the insurgent authori-
ties, and, being found to be fast, was put m commission as a
man-of war. After cruising in this character, and destroying
a number of vessels under the flag of the United States, she
returned to J^ermuda. She was allowed to come into the har-
bor, and permission was given for a stay of five days for repairs
and to take on board twenty-five tons of coal, although she
had at that time one hundred tons in her bunkers. November
15, 1864, she sailed from Bermuda, and on the 19th arrived at
Wilmington.
The British Counter Case took the same
Brituh Counter Caie. gp^m,(jg ^^ regard to the Chiclamauga as it
took in regard to the Tallahassee. As to her coaling and re
pairing at Bermuda, the British Counter Case stated that what-
ever was allowed was limited to actual needs, as ascertained
by the report of two officers of the British navy. They found
that she had about seventy five tons on board and that her
daily consumption was twenty-five tons, and they considered
that twenty- five tons more would enable her to reach the
nearest Confederate port. On this report she was refused
permission to take more than twenty-five tons, and a revenue
4174 INTERNATIONAL ARBITRATIONS.
officer was placed on board to see that she took no more. If
she obtained more it must have been by illicit means. In this
relation the British Counter Case entered into a detailed
statement of the various occasions on which men-of-war of the
United States were permitted to obtain repairs and coal at
Bermuda.
Viscount d'ltajubd expressed a formal opin-
Dedsion. lon to the effect that Great Britain had not, in
respect of the Chickamaugaj failed to fulfill any
of the duties of neutrality.
Mr. Adams expressed the same opinion.
Sir Alexander Cockburn pronounced the claim groundless
and frivolous.
The tribunal of arbitration unanimously decided that Great
Britain had not, in respect of the Chickamauga^ failed by any
act or omission to fulfill any of the duties of neutrality.
i. The Shenandoah.
(For the full record of the arbitration in this case, see Papers
relating to the Treaty of Washington, as follows: American
Case, 1. 118, 165; British Case, id. 374; American Counter
Case, id. 440; British Counter Case, II. 320; American Argu-
ment, III. Ill; British Argument, id. 282,283; Mr. Bvarts's
Special Argument, id. 458, 462 ; Sir Roundell Palmer's Argu-
ment, id. 520; Mr. Cushing's Argument, id. 552; Opinion of
Count Sclopis, IV. 81; Opinion of Viscount d'ltajubd, id. 101;
Opinion of Mr. Staemptli, id. 125; Opinion of Mr. Adams, id.
196; Opinion of Sir Alexander Cockburn, id. 484; Award,
id. 52.)
The British steamer Sea King was, as
Case of the United ^^^^^^ j^^ ^^^ ^^^^ ^^ ^^^ United States, a
Stfttes
vessel of about 790 tons register. She had
belonged to the Bombay Company and had been employed in
the East India trade, in which she had proved herself one of
the fastest vessels afloat. September 20, 1864, she was sold in
London to Kichard Wright, a British subject, and the father
in law of Mr. Prioleau, the managing partner of the house of
Fraser, Trenholm «& Co., the Confederate agents at Liverpool.
The transfer was registered on the same day. On October 7
Wright gave a power of attorney to one Corbett to sell her.
Corbett was the captain of a British blockade runner. The
next day the Sea King cleared for Bombay with a crew of
neutrality: the geneva abbitratiok. 4175
forty-seven men and with enough coal and provisions for a
year's cruise. Two IS-pounders were mounted on her decks.
On the evening of the same day a steamer called the Laurel
left Liverpool, clearing for Matamoras, via Nassau, with a
number of men from the Confederate States and a cargo of
cases marked as machinery, but in reality containing guns
and gun carriages, such as are commonly used in vessels of
war. Mr. Dudley, the United States consul at Liverpool, drew
the correct conclusion that they were to be transferred to
some other vessel.
The appointed place of meeting was Funchal, in Madeira.
The Sen King arrived there on October 19; the Laurel two days
in advance. The transfer of the cannon, munitions of war,
and stores was soon effected. Corbett then announced the
sale of the vessel, which had already taken ])lace in London,
and tried to induce the men who had enlisted to sail in the
Sea King to continue in the Shenandoah^ the new name
assumed by the vessel. The contract of Corbett was so pal-
pably a violation of the foreign enlistment act that the British
consul at Funchal sent him home as a prisoner for trial
Captain Waddell took command in place of Corbett. A liirge
number of the seamen refused to continue with the- vessel.
When news of those transactions reached London, Mr. Adams
brought them to the notice of Earl Russell.
The Shenandoah proceeded from Madeira to Melbourne, and
in the course of a cruise of ninety days destroyed several mer-
chant vessels of the United States. January 25, 1865, she
dropped anchor off Sandridge, a small town two miles from
Melbourne. The mails that had arrived there from England
had brought reports that the Sea King had left Liverjjool with
the intention of becoming a Confederate cruiser, and suspicion
was at once aroused that the newly arrived man-of-war was no
other than that vessel. This suspicion was confirmed by state-
ments of prisoners from the captured vessels and by the
statements of other persons.
The consul of the United States brought the matter to the
notice of the authorities, and maintained that the vessel was
not entitled to belligerent rights. The authorities, however,
decided that she was entitled to the belligerent character, and
that she might be repaired. On one pretense or another she
was permitted to remain till February 18. This time was con-
sumed, apart from obtaining repairs and supplies, in the en-
4176 INTERNATIONAL ARBITRATIONS.
listment of men. There was, declared the Case of the United
States, no time during the stay of the Shenandoah at Melbourne
when it was not notorious that she was procuring recruits. Her
eflective power as a man-of-war depended on her obtaining new
men, and this was the purpose of her visit. But, althoagh the
consul of the United States presented evidence of her enlist-
ments, no effective proceedings to prevent them were taken.
The Shenandoah obtained at Melbourne about forty-five men.
The fact that she had enlisted a large number was a matter of
common notoriety, and was commented on in the newspa-
pers. There was great negligence in not preventing these
enlistments.
There was also, said the Case of the United States, in per-
mitting the Shenandoah to take at Melbourne supplies of coal
and provisions sufficient to enable her to make a long cruise in
the Arctic seas and burn American whalers, long after the
military resistance of the Confederacy to the United States
had ceased, a violation of neutral duty. It was a still greater
violation of that duty to permit repairs to her machinery when
she was under no necessity of using steam. Her hull was
sound and seaworthy, and she could at once have made her
way to the insurgent ports. She continued her destruction of
American vessels far into the summer of 1865. On the 6th of
November in that year she returned to Liverpool, where she
was subsequently turned over by the British Government to
the United States.
As to the recruitment of men at Melbourne,
The Britisii Case, the British Case said that four persons were
prosecuted for having joined or attempted to
join the Shenandoah^ and that these were all that could be
ascertained to have made such an attempt before she left Mel-
bourne. The captain gave his word in writing that there were
no persons on board except those whose names were on his
shipping articles, and that no one had enlisted since his
arrival; and the colonial f^overnmeut could not have searched
the vessel without transgressing the rules of neutrality and
the practice of nations.
The discovery having afterward been made that persons had
been secretly put on board during the night preceding her
departure, notice of the fact was sent to the governors of the
other Australian colonies and of New Zealand, in order that
further hospitalities might be denied her.
NEUTRALITY: THE GENEVA ARBITRATION. 4177
Count Sclopis said that, in his opinion, it
""*^^' ^* ^^^ "^* absolutely proved that the repairs of
the Shenandoah at Melbourne constituted in
themselves a ground for a charge of violation of neutrality.
It was proved that the repairs were necessary, and it was not
shown that the replacement of the force of the vessel, by means
of the repairs, surpassed the measure of its former condition.
It was, said Oount Sclo])is, difficult to ascertain the exact
number of men who were on board the Shenandoah when she
left Melbourne on her way to the Arctic seas. But there was
no doubt that the neutrality of the colony was flagrantly vio-
lated by the enlistment of a large number of men. This fact
was admitted by the British authorities, and it involved the
responsibility of (Jreat Britain. Moreover, the large supplies
of coal with which the vessel was furnished could be regarded
only as a preparation for a hostile expedition against the com-
merce of the United States, and they fell within the scope of
the second rule of the Treaty of Washington.
Viscount d'Itajub4 held that, in respect of
^^^'ita* u ™** *^® equipment and armament of the Sea King,
Her Majesty's government could not becharged
with any neglect of neutral duty. He took the same view as
to what occurred at Melbourne. While it was, he said, true
that some irregularities had occurred there, it was not shown
that they were imputable to the neglect of the authorities.
They were rather the consequence of the violation by the com-
mander of the Shenandoah of his word of honor, and of the
exceptional difficulties of surveillance which the conformation
of the port presented. Moreover, the governor of the colony,
as soon as he became aware of the unneutral acts of which the
vessel had been guilty, resolved thenceforth to refuse hospi-
tality to her, and wrote in this sense to the naval and civil
authorities of Australia.
Mr. Staempfli expressed the opinion that
' !^^ ' there had been, in respect of the Shenandoah,
a violation of the obligations of neutrality, and
that Great Britain consequently was responsible for the Amer-
ican ships which the vessel destroyed.
Mr. Adams held that Her Majesty's govern-
Mr. Adams's Opinion, ment was not responsible, in re8i)ect of the
Shenandoah, for what took place before her
arrival at Melbourne. When she arrived at that port she was
4178 INTERNATIONAL ARBITRATIONS.
not, by reason of a lack of men, in an efficient condition as a
fighting vessel. But she was recognized as a man-of-war of a
belligerent, the authorities deciding that it would be inexpedi-
ent even to require the commander to show his commission
from the government of the Confederate States, and i>ermission
was given her to obtain repairs and a supply of coal. The
delays which were contrived in respect of her departure were
doubtless consumed in obtaining secret additions to the crew.
Testimony showing this to be the case was laid before the
authorities by the United States consul, and as early as Feb-
ruary 13 they were apprised of the arrangements. which the
commander of the vessel had made for the shipment of men,
and were in a situation to adopt measures of prevention if
they had thought proper to do so. Yet the only effect these
facts produced was to beget a desire to get rid of the vessel by
supplying her with all that was asked for. Her need of coal
was slight, and she had a fair supply on board, but she was
permitted to take as much as she could carry; and she obtained
a complement of her crew, without which she could have done
nothing.
On all the facts, Mr. Adams reached the conclusion that
from the time of the departure of the Shenandoah from Mel-
bourne the Ciovernment of Great Britain, having failed, in
respect of what took place there to fulfill the obligations of
the second rule of the Treaty of Washington, was liable for all
the damages subsecpiently incurred by the United States.
Sir Alexander Cockburn argued at length
Sir Alexander Cock- i.ii.TTTic-i.i xii« •■
V , /w- • that Her Majesty's government had incurred
Dam 8 Opinion. .» ./ o
no liability at any time on account of the
Shenafidoah,
The tribunal of arbitration in its award
Award. held, unanimously, that Her Majesty's gov-
ernment had not failed, by any act or omis-
sion, to fulfill any duty in respect of the Shenandoah prior to
her entry into the port of Melbourne. But, by a majority of
three to two, it held that, as a result of all the facts connected
with the stay of the vessel at Melbourne, and especially with
the augmentation of her force by the enlistment of men, Great
Britain had failed to fulfill the duties prescribed by the second
and third rules of the Treaty of Washington, and wa« therefore
responsible for all the acts of the vessel after her departure
from Melbourne on February 18, 18G5.
CHAPTER LXIX.
LIMITATION AND PRESCRIPTION.
By Article II. of the treaty between the
'r'*JL"i!« ° « "' United States and Great Britain of July 3,
Treaty Obliffation.
1815, it is provided that no "higher or other
duties" shall be imposed on the "exportation of any articles''
from the one country to the other "than such as are payable
on the exportation of the like articles to any other foreign
country." From the date of the treaty down to May 6, 1830,
certain duties were levied by the British Government in viola-
tion of this stipulation, but the fact does not seem to have
been understood either by the government or by shippers till
December 27, 1825, when some American merchants discov-
ered and called attention to it; and from the 20th of the fol-
lowing January they paid the duties in question under protest,
or conditionally. On August 20, 1826, the committee of the
privy council for trade decided that the duties were illegally
exacted, but the board of customs refused to refund them, and
obtained the passage of an act of limitations to the effect that
duties thus assessed should not be refunded for a period ex-
tending back more than three years. For a number of years
no further action was taken, but on December 3, 1845, the
board of customs ordered the duties to be refunded back to
January 26, 1823. The claims for the refund of duties from
July 3, 1815, to January 26, 1823, remained unadjusted, and
were submitted to the commission under the convention be-
tween the United States and Great Britain of February 8,
1853. A question arose, but seems to have been but little
pressed, as to whether the claims were internationally barred
by lapse of time, or rather by the act of limitations above re-
ferred to. On this subject the commission said:
"The first question arising for the consideration of the com-
mission is, whetlier any legal bar on account of lapse of time
exists against sustaining the claim for a return of duties.
" This seems now hardly to be contended for. Where a treaty
is made between two independent powers, its stipulations can
5627— VOL. 4 60 4179 j
4180 INTERNATIONAL ARBITRATIONS.
not be deferred, modified, or impaired by the action of one
party without the assent of the other. If the parties, by their
joint act, have established no barrier in point of time to the
prosecution of any claims under a treaty made by them, then
neither country can interpose such limit. The case admits
of no other judicial construction. The legal advisers of the
crown concur in this view, and the commissioners have no
doubt on the point.
^^It is conceded, as a matter of fact, that an inequality in
duties existed in violation of the provisions of the treaty;
and, there being no bar to the recovery of the claim from lapse
of time, such duties shall be refunded.^'
Upbam, oommissioner, delivering the opinion of the commiBsion. (S.
Ex. Doc. 103, 34 Cong. 1 sees. p. 309.)
A similar question arose in respect of duties held to have
been improperly exacted by the United States, in violation of
another stipulation of Article II. of the treaty of 1815, relating
to duties on imports. The duties in question were imposed
under the taritf act of June 30, 1824, and covered a period of
several months subsequent to that date, but the treaty viola-
tion does not appear to have been discovered till 1842, when
by the tariff act of August 30, 1842, another and similar in-
fraction was committed. Attention having then been drawn
to the subject, claims were miide by British subjects not only
for the duties improperly collected under the act of 1842, but
also for those so collected under the act of 1824 5 and, on the
grounds stated in the preceding case, the commissioners de-
cided that those duties should still be refunded, saying "that
no statutes of limitation can be pleaded in bar of claims arising
under treaties."
(S. Ex. Doc. 103, 34 Cong. 1 sess. pp. 311-313.)
Gardner Mossman, a citizen of the TJnited
Mossman'B Case: De- States, claimed damages from Mexico under
y in ^"^^ the following circumstances: According to his
own statement he was in command of the brig
JI, Kellocic, on a voyage from Barbados to Ooatzacoalcos, when
on January 28, 1854, he was driven ashore about twenty
miles west of the bar of Ooatzacoalcos. The arrival of the
brig at that port, without having previously called at Vera
Cruz or some other Mexican port of entry, would at that time
have been a violation of the Mexican law, but of that fact
Mossman seemed to be ignorant. But, however that may be,
the Mexican authorities required him on January 30 to pro-
LIMITATION AND PRESCRIFnON. 4181
ceed to Minatitlan, where he was arrested, but released on
bail, so that be might, for aaght that appeared, have attended
to the wreck of his vessel, if he had chosen to do so. Febra-
ary 7 he was, at his own request, given up by his bail to the
authorities; but even then it did not appear that he was
imprisoned, since on the 13th he went on board an American
schooner with the intention of leaving for Vera Cruz, although
he was considered by the authorities as being under arrest.
From the schooner, however, he was taken on board a Mexi-
can vessel of war, and he asserted that he was kept there for
two days and a half, when he was sent ashore. Afterward,
according to his own account, " he was obliged to find his way
to Vera Cruz, from which place he sailed for New Orleans.''
There is no proof whatever that he was imprisoned at Vera
Cruz. On the contrary, he seemed voluntarily to have aban-
doned the wreck of his vessel and to have found his way to
Vera Cruz and thence to New Orleans as soon as possible.
Sir Edward Thornton said : '^ If all that the claimant com-
plains of had been true, he might have procured evidence of
his assertions from the United States consul at Minatitlan
• * * as well as from other witnesses. Further, when he
arrived at Vera Cruz, where, as he states, he signed a paper at
the suggestion of the United States consul, there was no reason
whatever why, if he felt himself aggrieved by inferior authori-
ties at Minatitlan, he should not have appealed through his con-
sul or otherwise to the Mexican Government. It seems unfair
that the latter should be first informed of tbe alleged miscon-
duct of its inferior authorities more than fifteen years after
the date of the acts complained of. The umpire can not under
this circumstance consider that the Mexican Government can
be called upon to give compensation for a very doubtful injury,
and he therefore awards that the claim be disallowed."
ThorutOD, umpire, February 18, 1875, Gardner Moanman v. Mexico^ No.
15, convention of July 4, 1868, MS. Op. IV. 581. In tbe case of Snow *f*
BurgesB v. Mexico, No. 102, Dr. Lieber, as umpire, April 24, 1871, awarded
indemnity to the owners of the brig on the ground that " the Mexican
authorities seized upon tbe stranded vessel, and appropriated it, it would
seem, without any legal process." (MS. Op. II. 275.)
" It appears from the papers transmitted us
Wimami's Case, that iu 1841 John H. Williams, a merchant in
New York, sold and delivered in that city to
an agent of the Venezuelan Government certain mirrors with
/
4182 INTERNATIONAL ARBITRATIONS.
mountings for the government house at Caracas for $2,489.11,
which were duly forwarded and received.
" On the 24th day of April 1868, Mr. Williams presented
the account against that government before the former com-
mission for these articles as of the date of November 9, 1841,
and verified it under oath, claiming an award, including
interest at 7 per cent, of $7,019.11. The account had before
been sent to the United States legation at Caracas for col-
lection, but how long before does not appear. It had not, pre-
vious to 1868, been brought to the attention of the Venezuelan
authorities from any source, so far as shown, and no reason
or explanation is given for delay in presentation.
" Venezuela claims the goods were paid for at the time of
purchase. On the issue of fact thus made she was (1868) and
is x)laced at a disadvantage by the long lapse of time as to the
matter of personal testimony, some, if not all, her witnesses to
the transaction having before then died.
^^ The question with some collateral ones is thus presented
whether time, figuratively stated, testifies in these adjudica-
tions. This case could perhaps be disposed of upon other
grounds and in comparatively few words; but as the same
question with like resulting ones is involved in other cases
argued and submitted, we have concluded to treat it with
some fullness and dispose of the case from this standpoint, in
view of the fact that the general question appears to be a some-
what mooted one with each government.
^^It thus appears then the claim was not
Preacription. brought to the attention of the Venezuelan
Government until twenty-six years after its
inception. Its ownership, nature, and amount were such as
would have made a delay in presentation to the debtor for a
single three months a matter of surprise. By lapse of time
the means of defense have been impaired, and there is total
want of excuse for the long delay by claimant. Under such
circumstances what does the law require at our hands!
''It is a well settled principle in common law jurisdictions,
and a recognized one in civil law conntries, that obligations are
to be enforced according to the h\v loci fori which here is the
treaty and the public; law. Beyond the requirement that its
decisions must be according to justice, the treaty furnishes no
guide to the commission respecting the operation of the lapse
of time in extinguishing obligations. It is left to the direc-
LIMITATION AND PRESCRIPTION. 4183
tion of international law on thesubject. Does that recognize
the doctrine of such extinguishment as between states in con-
troversies like these f The question has been argued with
exceptional force and ability by counsel for the respective
governments.
^^It will, perhaps, not be amiss to group extracts from the
deliverances (Italics ours) of some of the leading authorities
upon the general doctrine of prescription and pertinent princi-
ples. We present them as they have been consulted, and with-
out reference to any special order. It may be well i)relimina-
rily to note that, while individual interests are involved, these
controversies, as elsewhere seen, are between states in some
sense, and stand much as if so originating; and, further, that
while the texts will be seen largely to relate to territorial acqui-
sitions the principles announced comprehend the acquisition
and loss of personal property, and pertain to other rights
as well.
' ' Says Wheaton :
'^'The writers on natural law have questioned how far that
peculiar species of presumption, arising from the lapse of time,
which is called prescription, is justly applicable as between
nation and nation; but the constant and approved practice of
nations shows that by whatever name it is called the uninter-
rupted possession of territory or other property for a certain
length of time by one state excludes the claim of every other;
in the same manner as by the law of nature^ and the municipal
code of every civilized nation^ a similar possession of one indi-
vidtial excludes the claim of every other person to the article of
prope>*ty in question. This rule is founded upon the 8up])0si-
tion, confirmed by constant experience, that every i)er8on will
naturally seek to enjoy that which belongs to him ; and the in-
ference fairly to be drawn from his silence and neglect of the
original defect of his title, or his intention to relinquish it,'
(P^lements Int. L. 6th ed. 218.)
" Vattel :
" 'It is asked whether usucaption and prescription take place
between independent nations and states. ♦ ♦ » Now, to
decide the question we have proposed we must first see whether
usucaption and prescription are derived from the law of nature.
Many ilhistrious authors have asserted and proven them to
be so. ♦ ♦ ♦ It is impossible to determine by the law of
nature the number of years required to found a ])rescription ;
this depends on the nature of the property disjmted and the
circumstances of the case.
4184 INTERNATIONAL ARBITRATIONS.
<<<AfU'r having shown that n8U(;aptioii and prescription ttre
foanded in t\w, hiw of nature, it is easy to prove that they are
equally a part of the law of nations and ought to take place
between ditl'erent states. For the law of nations is bat tiie
law of nature applied to nations in a manner suitable to the
parties coneerned. And so far is the natare of the parties
from affording them an exemption in the case, that usncaption
and presiTi])tion are niucli more necessary between sovereign
states than between individuals.' (Law of Nations, Book 2,
ch. 11.)
^< < Prescription,' this author defines in the same connectioD,
*is the exclusion of all pretensions to right — an exclnsion
founded on the length of time during which that right has
been neglected'."
"Phillimore:
*^ ' This [prescription of public law] is in principle very much
the same as the pre.scn])tion of the private law, which indeed
may be said to be modeled upon the usage of the public law,
and ichivh usaye <jretr out of the reason of the thing. • • •
Does there arise between nations, as between individuals, and
a4t between the 8tiit(» and individuals, a presumption from long
possession of a territory, or of a rights which must be consid-
ered as a legitimate source of international acquisition f ♦ ♦ •
The eftect of the lapse of time upon the property and right of
one nation relative to another is the real subject for our con-
sideration. And if this be borne steadily in mind it will be
found on the one hand, in the highest degree, irrational to deny
that prescription is a legitimate means of international acqui-
sition; and it will, on the other hand, be found both inex-
pedient and impracticable to attempt to define the exact
period within wliich it can be said to have become established,
or, in other words, to settle the precise limitation of time
which gives validity to the title of national possessions.' (Int
Law, 1, pp. 272-27.").)
"Hall:
"^Tho i)rinciple upon which it [international prescription]
rests is essentially the same as that of the doctrine of prescrip-
tion which finds a place in every municipal law, although in
its application to b<»ings for whose disputes no tribunals are
open some modifications are necessarily introduced.' (Int
Law, 100.)
'' Poison :
" ' How far prescription may be considered as operating npon
nations jurists do not appear to have agreed; but the nniform
practice of nations shows that they recognize the long and un-
interrupted possession of a territory as excluding the claims
of all other nations, and that thin principle^ whose exposition tills
LIMITATION AND PRESCRIPTION. 4185
SO large a hea<l in municipal jarispradence, is equally recognized^
as reason dictates it should be, in international law,^ (Law of
Nations, 28.)
"Oalvo:
<^ < May asucaption and prescription be considered in regard
to xieoples and states as regular and normal means of acquir-
ing property? If it is admitted that these two ways of acquir-
ing are legitimate and based on natural law, one is logically
bound to admit that they are equally conformable to the prin-
ciples of the law of nations, and are to be applied to nations.
Usucaption and prescription are even more necessary between
states than between individuals. In fact the differences be-
tween nations have a much greater importance than individual
contentions; these maybe settled by tribunals, whilst inter-
national conflicts frequently end in war.' (Droit International,
vol. 1, § 171.)
" Vico :
<< < The inert, the incautious, the negligent, the luxurious, are
punished in the injury they do to themselves by the loss of
their interests and their rights through usucapio and pre-
scription' (De Uno Universi Juris, etc. p. 331.)
<< Orotius, while seeming to indorse Yasquius in denying
usucaption a place both in public and private international
law, except as established by municipal law, is at pains to
point out its national recognition from the earliest times.
Among other instances he tells that, to the demand of the King
of the Ammonites for the restoration of certain lands between
the Aruon and the Jabbok, and from the deserts of Arabia to
the Jordan, the leader of Israel opposed a three hundred years'^
possession, and demanded to know of the king why he and his
forefathers had been quiescent so long. Also, that ^ the Lacedae-
monians, according to Isocrates, laid it down as a most certain
rule, acknowledged among all nations, that public possessions
as well as private are so confirmed by length of time (viulto
tempore) that they can not be taken away. By which natural
laic ( quo jure) they refused those who were seeking the recov-
ery of Messina." (De Jure Belli ac Pacis, Lib. 2, cap. 4.)
' The passage to which the learned commissioner refers is in Grotius's
chapter '^De dereliotione pra^Bumpta, et eam secnta oocupatione, et qnid
ab usucapiune et pncscriptione differat/' (De Jare Belli ac Pacis, Lib.
II, cap. 4.) Hut immediately after referring with a certain doabtfal ap-
proval to Yasquius, Grotius says: ''Yet if we admit this, there seems to
follow this very inconvenient conclusion, that controversies concerning
kingdoms and their boundaries are not extinguished by any lapse of time;
4186 INTERNATIONAL ARBITRATIONS.
" Taparelli :
" * Hence the law of prescription — a necessary and just law —
by means of which society stops, through certain limitations,
all inquisitions of ancient rights.
• •**•• •
^^ ^ Most reasonable is, therefore, the law of prescription in
the natural order, although nature itself does not overtly es-
tablish its strict necessity nor fix its proper limitations. This
is to be performed by society as it grows more and more per-
fect; and it is as much the more i^ office as it is therefrom
and therein that the social complaint requiring such a remedy
takes its rise.' (Natural Law, vol. 2, 979.)
"Sala:
^< < 1. By using anything with just title and good faith the
ri^ht of possessing it is likewise acquired; but this manner of
acquiring is considered to be civil, because of its being at first
view resisted by natural reason that does not allow anybody
to be deprived of his possession without his fault or consent,
although it does not cease to have great equity, as it is
grounded on the requisitions of public good; so that we have
no great objections to say that it can also be referred to the
secondary law of nations.
" ' 2. To this manner of acquiring the Roman laws gave the
name of u8ucai)tion or prescription, ♦ • ♦ and it is but
acquisition of doyninium by continued possession during the
time determined " by the law.'' Its introduction was made
necessary from public utility and the tranquillity of the re-
public, because, in default of it, possessors of things would be
subject to unlimited disputes, which their long possession, even
though acquired by sale or any other legitimate title, would
not be enough to prevent. Any one would be enabled to claim
that the thing belonged to his ancestors, and never to him who
sold it, and possession would keep uncertain and the state
subject to the grievances that may be easily conceived. With
reason did Cicero call it the end of solicitude and disputes.'
(Illustration of Spanish Law, vol. 1, book li, title 2.)
*^ The Supreme Court of the United States, in Rhode Island
i\ Massachusetts (4th Howard, G39) said:
'' ^ Xo human transactions are unatiocted by time. Its influ-
ence is seen over all things subject to change. And this is
which not only tonds to disturb the minds of many and to perpetuate
wjirs, but is also repujjjnant to the common sense of mauTtind." Further
on in the sann' chaptiT (8e<ti<m 9) (Jrotius, referring t^ the same subject,
says: "And perhaps we may say that this is not merely a matter of pre-
sumption, but that this law is estaldisluMl by the voluntary law of nations,
that a possession beyond memory, not interrupted, nor disturbed by ap-
pealing to an arbitrator, absolutely transfers dominion. It is credible
that nations have agreed on this, since such a rule is most conducive to
the public peace/'
LIMITATION AND PRESCRIPTION. 4187
peculiarly the case in regard to matters which rest in memory
and which consequently fade with the lapse of time and fall
with the lives of individuals. For the security of rights^
whether of states or of individuals^ long possession under the
claim of title is protected.'
"And again, in Wood v. Carpenter (101 U. 8. 139), although
the question was as to a statutory bar, the observations of the
court apply as well to the grounds of prescription. Said Mr.
Justice Swayne:
" * Statutes of limitation are vital to the welfare of society
and are favored in the law. They are found and approved in
all systems of enlightened jurisprudence. They promote repose
by giving security and stability to human affairs. An impor-
tant public policy lies at their foundation. They stimulate
activity and punish negligence. While time is constantly de-
stroying the evidence of rights^ they supply its pla^e by a pre-
sumption which renders proof unnecessary. Mere delay extend-
ing to the limit prescribed is itself a conclusive bar. The law
and the antidote go together.'
" Lord Coke, while declaring limitation of actions to be by
force of statutes, wrote:
"< But they have said that there is also another title by pre-
scription that was at the common law before any estatute of
limitations, and inasmuch as such title by prescription was at
the common law, ergo it abideth as it was at the common law.'
" Bracton, who wrote long before the first English progres-
sive limitations act (1540) and before Parliament named events
as bounds of limitation even, said:
" * We must see also in what manner an obligation is got rid
of; and it is known it is likewise got rid of sometimes by an
exception in various ways, as if a person should claim and an-
other should show he has discharged it. • • • Likewise,
by an exception of a prescription on account of defect of proof
because, as time is a mode of bringing in an obligation, so it
is a mode of getting rid of it through dissimulation and neg-
ligence, which is limited under certain times, for time runs
against the indolent and those who are careless of their right.^
(twiss's Bracton, vol. 2, p. 123.)
*'Sir Henry Maine:
^*'It was a positive rule of the old Boman law — a rule older
than the Twelve Tables — that commodities which had become
uninterruptedly possessed for a certain period become the prop-
erty of the possessor.' (Ancient Law, 280.)
"Brocher declares:
"* Prescription is as much a necessity to society as is inher-
itance to a family. We can not conceive of the second without
4
4188 INTERNATIONA!. ARBITRATIONS.
the first. Without such a sauctiou, nothing would be secure.'
(Droit Int. Priv. 321.)
"Domat:
'^^The use of prescription is wholly natural in tlie state and
condition we are in. * * ♦
" * The name reason which makes that long possession acquires
the property and strips the aticient proprietor j makes likewise that
all sorts of rights and acquisitions are a>cquired and lost by the
effect of time. Thus a creditor who has omitted to demand
what is due to him within the time regulated by law, has lost
his debt and the debtor is discharged from it. • • • And,
in general, all sorts of pretensions and rights of all kinds what-
soever are acquired and lost by prescription^ unless they be such
as the laws have particularly excepted. Thus we have two
effects of prescription, or rather two sorts of prescription. One
which acquires to the possessor the property of what he pos-
sesses, and which divests the proprietor of his right because
of his not possessing; and the other by which all other kinds
of rights are acquired or lost; whether there be any possession
of them — as in tlie case of the enjoyment of a service, or
whether there be no possession of them at all — a« in the loss of
a debt for not demanding it.
'''AH sorts of prescrii)tion by which rights are acquired or
lost are grounded upon this presumption, that he who enjoys a
right is supposed to have some just title to it, without which
he had not been suffered to enjoy it so long; that he who ceases
to exercise a right has been divested of it for some just cause;
and that he who has tarried so long a time without demanding his
debt^ haa either received payment of ity or been convinced that
nothing was due him,
"'We must distinguish two sorts of rules relating to pre-
scription. Those whicli concern the ditferent manners in which
the laws have regulated the times of prescribing, and those
which lespect the nature of prescriptions. * ♦ ♦ These are
the natural rules of equity, but those which make the time of
prescrij)tion only arbitrary laws. For nature does not fix what
time is nectessary for prescribing.- (Civil and Public Law,
Strahan's Ed. (1732) 4<S3-484.)
"Burke:
'"If it were permittcnl to argue with power, might not one
ask these gentlemen whetiier it would not be more natural,
instead of wantonly mooting these questions concerning their
])roperty, as if it were an exercise in law, to found it on the
solid rock of presc^ription — the soundest, the most general, the
most recognizrd title between man and man that is known in
municipal or in 7>m/>/i6* jurisprudence; a title in which not arbi-
trary instituti<ms, but the eternal order of things gives judg-
ment; a title which is not the creature but the master of pos-
itive law; a title which, though not fixed in its term, is rooted
LIMITATION AND PRESCRIPTION. 4189
in its principles in the law of nature itself, and is indeed the
original ground of all known property; for all property in
soil will always be traced back to that source, and will rest
there. * • • These gentlemen know as well as I that in
England we have always had a prescription or limitation, an
all nations have against each other. ^ (Letter to Son: Works,
vol. G, p. 412. See also speech on English Constitution, vol. 7,
p. 04.)
" We add expressions on the subject from two of the great
departments of the United States Government, that of State
and that of Justice. Mr. Bayard, Secretary of State, iu a note
to Mr. Muruaga, Deo>ember 3, 1886, said :
^'^The same presumption maybe almost as strongly drawn
from the delay in making application to this Department for
redress. Time, said a great modern jurist, following therein a
still greater ancient moralist, while he carries in one hand a
scythe by which he mows down vouchers by which unjust
claims can be disproved, carries in the other hand an hourglass
which determines the period after which, for the sake of peace
and in conformity with sound political philosophy, no claims
whatever are permitted to be pressed. The rule is sound in
morals as well as in lawJ (Wharton, Int. L. Appendix, vol. iii.
See Orall<^ infra.)
'•The Government of the United States was indebted to
Reside upon a judgment. The Secretary of the Treasury iu
1858 undertook to withhold a part of it, because of an alleged
indebtedness of Beside to the government of twenty-three
years' standing. The question of his right to do so was referred
to Attorney-General Black, and the following is a part of his
answer to the President under date July 21, 1858:
'* ' It is a decisive answer to say that the claim is based on
transactions which are twenty-three years old. It is a rule of
common sense and reason as well as law that when a ])arty has
lain by with a claim until theeviden(;e concerning it has ceased
to exist, and then produces it, the other party is not bound to
explciin it. It is presumed that he could explain it if his wit-
nesses were alive and his papers preserved, and that presump-
tion shall stand in place of all the proof which might have
been demanded when the matter was fresh.
'' ^ I admit that the statutes of limitation can not be pleaded
against the Government a.'s a technical bar. I do not speak of
that conclusive legal presumption which would be created in
six years against an individual ; but the Government is bound,
like anybody else, by the rules of evidence and by the natttral
presumptions arising from the facts of the case. In some
countries there are no statutes of limitation ; in all countries
i
4190 INTEBKATIONAL ABBITRATIOHB.
lihere are lar^^ classes of oases to which sach atatatea do not
apply. But it is one of the rules of ereiy civilised oode fbat
a certain length of time, generally about twenty years, shaD
be regarded as evidence that a claim is eithw aiUnat or satis-
iled, and such lapse of time proves that fisMst as ftally as if it
had been attested by credible witnesses.
<^ ^ The experience of all mankind has shown that the evi-
dence thus furnished bv time is true and reliable. The judge
who disregards it would decide against the original honesty
of the case ninety-nine times in a hundred. • • • Wlien
time testifies against the sovereign it is heard with as mneh
respect as any other witness would be.'
^^ This is to be read in the light of the principles reoogniaed
in the case of The United States 9. B. B. Go., 118 IT. & IflOp
with which, it is believed, properly considered, it does not
conflict.
<< It is pertinent to note, in this connection, that the late Dr.
Wharton, quoting Mr. Oralis, formerly Assistant Secretary of
State, in the first edition of his Digest of International Law
(1886), issued from the United States State Department, em-
ployed this language (§ 239):
<^ ^ There is no statute of limitation as to international daims,
nor is -there any presumption of payment or settlement firom
the lapse of twenty years. Governments are presumed to be
always ready to do justice, and whether a claim be a day or a
century old, so that it is well tbunded, every principle of
natural equity, of sound morals, requires it to be paid.'
<^ While in his second edition, issued therefrom a year after,
are found these remarks (Appendix to 3d vol.):
^^ ^ While international proceedings for redress are not bound
by the letter of sprciftc statutes of limitations, they are subject
to the same presumptions as to payment or abandonment as
those on which statutes of limitations are based. A govern-
ment can not any more rightfully press against a foreign gov-
ernment a stale claim, which the party holding declined to
press when the evidence was fresh, than it can permit smdi
claims to be the subject of perpetual litigation among its own
citizens. It must be remembered that statutes of limitations
are simply formal expressions of a great principle of peace
which is at the foundation not only of our own common law
but of all other systems of civilized jurisprudence.'
^^The opposition (perhaps as strenuohs now as at any former
period) to international prescription among modem writers
(instance Pomeroy's Int. L. I2G) seems to us to arise in good
measure from confusion of terms, and to be therefore largely
apparent, rather than real. In other wordS| the difBaranoe
LIMITATION AND PRESCRIPTION. 4191
between the two schools, as we conceive, partly at least, ' lies
in the terms.' Prescription is confounded with limitation ; not
strangely either, considering the history of the terms carrying
the two ideas, the common purpose to be attained, and the
consequent extent of their indiscriminate use. As the dis-
tinction is to be sharply marked in reaching a correct conclu-
sion on the question under consideration, we briefly note that
history and some distinguishing features between the two.
^^ Under the Theodosian code, which required certain actions
to be brought within a stated period after the cause of action
arose, a plea that the action was begun too late was called
^priescriptio' by the Roman lawyers, just as it is now called
by the English a plea of the statute of limitation. Title and
rights by this means — enjoyment for the defined period — were
secured or maintained.
^^ Usucapio indicated ownership acquired by enjoyment
through long though undefined lapse of time.
^< Subsequently, under Justinian's code, usucapio was dropped
and pra^scriptio used to express both ideas; and thus the latter
term has come down to us, its derivative carrying the two
meanings with modifications engrafted on it, in the course of
the centuries. In the changes wrought prescription seems to
have yiehled its own meaning to that of the disused word, and
found expression in some nations for its old signification in a
distinct term.
''Mr. Markby, from whose lectures on the Elements of Law
we have freely drawn, says:
^' ^ In France and Italy, whether a man claims that ownership
is transferred to him by jwssession, or whether he defends
himself on the ground that the action is brought too late, he
calls it prescription.
'* ' In (xerraany the acquisition of ownership by possession is
called ''Ersitzung," and the bar to the action '' Verjahrung."
We use in England the terms prescription and limitation.
And inasmuch as the two things are really different it is better
to have the two names. In England the word " prescription ^
(as defined by Lord Coke) signifies the acquisition of title by
length of time and enjoyment. This would serve as a general
description of usucapio.' (Elements of Law, ch. 13.)
"While statutes of limitation are doubtless in good part
aimed to be, as they are often alluded to as, expressions of
prescription, they are, nevertheless, inaccurate expressions,
because, for one thing, of their rigidity and want of adaptation
to varying conditions and circumstances.
4
4192 INTERNATIONAL ARBITRATIONS.
^M t would be a bold assertion to say they are correct embodi-
ments of true presumptive evidence, when, for instance, in
the States of this Union the statutory periods within which
actions of ejectment may be brought range all the way from
five to forty years, and those upon promissory notes from two
to twenty years.
^* A conclusive legal ^presumption,' such as is said to arise
undei these statutes, is jwt a rule of inference, but one attach-
ing itself to a given state of facts ui)on grounds of pubhc
policy. (Greenleaf, Ev. § 32.) It does not postulate the truth
of the facts, e\cei)t in a general sense, or the fortlierance of
justice in every instance. For example:
<' ^ It does not assume,' says Greenleaf, ^ that all simple con-
tract debts of six years' standing are paid, nor that every man
quietly occupying land twenty years as his own has a valid
title by grant; but it deems it expedient that claims, opposed
by such evidence as the lapse of those periods, should not be
countenanced, and that society is more benefited by a refusal
to entertain such claims than by suftering them to be made
good by proof.'
*'Oii the contrary, prescription is a ^rule' of inference; not
necessarily perhaps that debts have been paid or titles granted,
or other ])articular tiling done, but that something at least has
transpired which, in the natural order^ as the Civilians say,
forms a basis and demand for its operation. It is no more the
creature of legishitive will than is any other induction. That
the lapse of time, variant according to circumstances, needed
to raise a rational i)resuniption of a past occurrence happens
to coincide in a particular case with the statutory period in
that behalf does not make prescription and statutory limita-
tion one. They are always distinct. The former relates to
substance, is the same in all jurisdictions, and aims at justice
in every case, while tlie latter i)ertains to process, varies as a
rule in all Jurisdictions, and from time to time often arbitrarily
in the same one, and admits occasional individual injustice.
Lord Coke, as seen, thought prescription *abideth' at com-
mon law notwithstanding tlie ' estatute.'
''The supreme court of California mark the distinction thus:
"'They [statutes of limitation] essentially differ from the
civil law doctrine of ])rescription, as they act simply upon and
defeat the remedy, while the latter defeats the right also.'
LIMITATION AND PRESCRIPTION. .4193
<^And again in a later case:
<^^No presumption is to be raised either as to payment or
otlierwise from the mere lapse of the statutory period, any
more than would naturally arise as to any other stale demand.'
"And such is the generally accepted modern view.
"Prescription has been denied a place in the public law
because it has ^ no definite fixed limit' (Pomeroy, supra)^ which
is very like objecting to it because it is not limitation.
"As before seen, prescription was recognized when limitation
was yet unknown. Bracton knew of it at common law before
the English statutes on the subject. Courts of equity, where
limitation acts do not apply, have invariably given lapse of
time due weight in adjudications. They have always refused
to enforce stale demands without undertaking to fix precise
times for imparting the infirmity. Each case is left, under
general principles, to be adjudged, as to time, according to its
own character and circumstances. And the doctrine has been
applied to the state acting for its citizens. In The CTnited
States V. Beebee, McOreary, J., in a suit where the United
States Government sought (in the interest of certain patentees)
to recover land adversely held for a long period under color of
title, held :
"^Although the general rule is that statutes of limitation do
not run against the state, yet when the state resorts to equity
for relief it must come on the same condition witli other suitors,
and a stale claim by the state may be rejected for that reason,
as it might when presented by an individual.' (17 0. L. J. 77.)
" On appeal the Supreme Court of the United States (127
U. S., 346), while disavowing imputation of la<;he8 to govern-
ment for negligence of officers in matters of state concern,
afiirmed the judgment, and said:
"'Courts of equity "refuse to interfere to give relief where
there has been negligence in prosecuting tlie claim, or where
the lapse of time has been so long as to afford a clear pre-
sumption that the witnesses to the original transaction are
dead, and the other means of proof have disappeared.'"
"One had as well essay to bound memory, or the occurrences
that constitute negligence, by exact limits of duration, as to
attempt to define just what shall be time's efflux to establish
true prescriptive rights. Parties, subject-matter, habits, con-
ditions, circumstances, enter into the problem. It is one thing
d
4194 • INTERNATIONAL ARBITRATIONS.
to forget or be able to show how one OMne by a fturm, and
another how one came by some animal on the fiunu The tMst
that a nation obtained a particolar territory by devastatiog
war will be treasured in memory long after eveiy vestige of
the transactions by which the implements of war were pro-
cured shall have been obliterated, and long after fhe tiikM of
its bonntied soldiers shall have been lost in oblivioa.
<^To withhold causelessly a demand for goods sold until the
witnesses to the transaction and other usual means of ascer-
taining the facts have, in ordinary coarse, passed away. Is
negligent conduct; while to withhold a bond issued by pabUe
authority and of which presumptively a public register is kept
for a like time after maturity may not be. It is tme experi-
ence teaches that such and such things are apt to oocor ordi-
narily in about such and such times in the aflEurs of men, bat it
also recognizes the impossibility of prescribing exaot periods
for the occurrences, as well as the certainty of occasional de>
partures from the general rule.
<<If to day A have a watch of B procured ten years ago,
and both, iu the multiplicity of their mutual dealings and
exchanges, have forgotten the circumstances of such procoie-
meut, and all means of determining the true ownership are
lost, whose watch does it become t A's. His titie arises out
of the necessity of the situation, or as Pothier says of pre-
scription, it is founded iu the ordinary course of things. If in
less complex transactions a like situation should arise only at
the end of twenty years the result would then be the same.
All know tliat continued possession by A and disregard or
neglect of his property by B will ultimately so terminate.
But no earthly power can prescribe just what lai>8e of time
will be necessary to create that situation. To decree when
such a condition shall be deemed to exist is another thing.
That can be done by legislation or by treaty stipulation, and
when done constitutes limitation — not prescription.
<^It is this prescription which underlies, varies from, ante-
dates, and, as Phillimore says, forms the model for municipal
limitation regulations that the writers asserting the existence
of the doctrine in the international law refer to and treat ofl
^^Ou careful consideration of the authorities on the 8ul:({ect|
much of whose discussion is only remotely aiiplicable to the
question as it is presented to us, we are of opinion that by
their decided weight — we might say by very neoessity — pre*
LIMITATION AND PRESCRIPTION. 4195
scriptioii has a place in the international system, and is to be
regarded in these adjudications.
^^Trne, but few of them make reference to individual claims
or to debts by one state on account of transactions with citi-
zens of another state. But the principles recognized are
general. Founded in nature, their application is imperative
and broad as human transactions. They reach to debts neces-
sarily, as Domat shows.
'< If an article be paid for when bought and the money left as
a special deposit with the purchaser, time, under the doctrine,
will run against a claim for it. A fortiori does it run, where
the money is not segregated from, but left with the common
fund of the buyer. Besides, the right to defend against is as
substantial as the right to assert a demand. Its impairment
is an injury. One whose act or negligence results in such in-
jury must be charged in justice with its consequences. The
causeless withholding of a claim against a state until, in the
natural order of things, the witnesses to the transaction are
dead, vouchers lost, and thereby the means of defense essen-
tially curtailed, is in effect an impairment of the right to defend.
The public law in such cases, where the facts constituting the
claim are disputed and disputable, presumes a defense. But
where there is valid reason for the withholding the case is
different The presumption is referable to some fault of the
claimant. Incapacity, disability, want of legal agencies, i^re-
veution by war, well-grounded fear, and the like are not
faults. Abandoned or neglected property or rights only are
prescriptible.
'*Vattel says:
^^ ^ As prescription can not be grounded on any but an abso-
lute or lawful presumption, it has no foundation if the propri-
etor has not really neglected his right.'
" Again :
<^ After showing that immemorial prescription' confers an
indefeasible title because it is founded upon a possession the
origin of which is lost in oblivion, he adds:
'' 'In cases of ordinary prescription the same argument can
not be used against a claimant who alleges just reasons for his
silence, as the impossibility of speaking, or a well-founded fear,
etc., because there is then no longer any room for a presump-
tion that he has abandoned his right. It is not his fault if
people have, thought themselves authorized to form such a
5627— VOL. 4 61
4196 INTERNATIONAL ARBITRATIONS.
])r<isiiinptioD, nor ouglit he to saffer in conseqnence. He can
not, therefore, be debarred tne liberty of clearly proving his
property.'
<^It is ^ordinary preaoription' snbject to be rebutted, with
which we are especially concerned. How is one in practice to
know in a given case when it arises, it may be inqaired, sincii
it has no fixed periods, and no analogies to gnide one arising
from limitation acts, snch as obtain in courts of equity. A
definitive answer it wonld be difficult to frame. But in general
wc should say, where, all the evidence considered, it appears
from long lapse of time and as a result thereof ordinarily ti^
have been apprehended, that material facts including meaus
of ascertain tnent i)ertaining to support or defense are lost, or
so obscured as to leave the mind, intent on ascertaining the
truth, reasonably in doubt about them, or in < danger of mis-
taking the truth,' a basis for the presumption exists. If snch
situation be fairly imputable to a claimant's laches in with-
holding his demand, or, in VatteFs phrase, ^when by his own
fault lie has sutl'ered matters to proceed to such a state that
there would be danger of mistaking the truth,' prescription
operates and resolves such facts against him; but if not so
imputable, what the finding must be becomes a quastion of
the prepon^lerence of testimony merely, leaving each party to
the misfortune time may have wrought for him in the support
or in the defense of the claim.
'* While prescription names and can name no particular pe-
riods, since Sir Matthew Hale's enunciation to that effect
twenty years have been looked upon as about the time, in the
ordinary run of atl'airs, required to give rise to the presump-
tion. And the ^eiuTal acceptance of that time is evidence of
its reasonable foundation. Still it must be said the constantly
increasin*,^ multiplicity of business transactions and intercourse
tends to su^rgest a shorter period.
*^ in this case it is not shown when the claim was first brought
to the attention of the United Stiites; and we have not sought
to ascertain, for, in the view we take, it is immaterial. When-
ever so brought, it came cum onere. It has been held that
statutes of limitation can be plejwled against the state in
an action u])on an assigned claim. ( LTnited States v. Buford, 3
Peters, 30.) The principle applies here, and continues to oper-
ate until time ceases to run against the claim, so to speak.
When doe» it so cease to run?
LIMITATION AND PBESCRIPTIOK. 4197
<^ It has been urged with plausibility that this occurs on the
claimant invoking the aid of his government, because then
he ceases to have control of his claim. But notice to the
plaintifif state is of itself no protection to the defendant state.
The latter's means of defense may be dissipated while the
claim lies in the archives of the former, and thus its right
to defend impaired in the sense above indicated. If it be said
the plaintiff state is an interested party and time should not
begin to run against it till its discovery of the ii\jury, it may
be answered that where one of two states is liable to be placed
at a disadvantage by the conduct of a citizen it should be that
one whose citizen he is. We think the due notification to the
debtor government marks the proper date. This puts that
government on notice, and enables it* to collect and preserve its
evidence and prepare its defense.
^^Of course time's work of obscuration, effacement, and de.
struction goes constantly on under all circumstances. <Time
and tide wait for no man.' And all, we apprehend, is meant
by its failing or its ceasing to run against a claim is that in
such event that work is not to be imputed to the laches of the
claimant. Delays are therefore harmful. Honest claims and
honest defenses suffer by them; only dishonest ones profit.
And so it is a delayed demand naturally excites criticism,
even where it escapes the ban of suspicion, and the greater
the delay the stronger the tendency in this direction.
^<In a recent case, the claim of Carlos, Butterfield & Co., of
New York, against the Government of Denmark, Sir Edmund
Monson, the British minister in Athens, the arbitrator under
a treaty (1888) between the United States and Denmark,
where it appeared that a lapse of less than six years inter-
vened between the occurrences (1854-55) complained of (being
acts of the public authorities of the Island of St. Thomas in
regard to claimants' shii)S, and of which the government at
Washington had prompt notice) and the ofQcial notification of
the claim to the Danish Government, said, while denying the
insistence of Denmark that such delay constituted a conclu-
sive objection to the validity of the claim, that neither claim-
ants nor the United States Government used due diligence,
^and have thereby exposed themselves to the legitimate critioisvi
of the Danish Government on their dilatory aetionJ
'^It is said there are old claims about which there is and
can be no dispute as to the fiicts. It is enough to say as to
i
4198 IKTBBNATIONAL ABBITBATIONB.
Hach, that the present holding does not stand in fheir way.
The statement of Mr. Orall^f Acting Seoretary of Stated to
which onr attention has been directed, namdy, ^GoTemments
are presumed to be alwajjrs ready to do jostiee; and whethar
a claim be a day or a century old, so that it is well fimndady
every principle of natural equity and of sound morals requires
that it should be paid,' may not in itself perhaps be opposed
to prescription. Oonceded that a daim <is well fimaded,'
there would seem to be no occasion for prescriptive or other
evidence in regard to it. The objection to the remarki in the
connection in which it was employed, is, that it aasomed the
truth of the matter in controversy, to wit, the validity nl
the daim, for the ascertainment of whibh the principle was
invoked. As to any admitted or indisputable fiMSt^ the pnbUe
law, not resting <upon the niceties of a narrow jurispmdenee^
but upon the enlarged and solid priudples of state morality,'
we are inclined to think, would not oppose the lapse of time^
except for the protection of intervening rights, should tiiere be
such, even where munidpal prescription might.
<^The contention urged with force, we should have before
observed, that the plaintifif government condusivdy adjudges
the question of laches on the part of claimants as against the
defendant government is not, we think, tenable. It is only
another form of denying prescription. If both governments
are not bound by the principle, it is not the law. If it be the
law, as we hold, neither can determine the occasion of its appli-
cation for the other. By the same titie the United States
decider a claim is not, Venezuela may declare it is, barred. Of
course, in their diplomatic discussions each government must
determine the law for itself.
^^ And the decisions of each, we may remark on tiie .other
hand, on such questions are entitled to high respect. Such
decisions are not to be taken, as has been suggested, as pet-
suasive arguments in support of or against claims in the ordi-
nary accex)tatioD. The state or foreign afiau's department of a
government always commands the services of the most learned,
able, and experienced statesmen and jurisconsults the country
affords. From every consideration attectiug it, its purpose
must always be to conform its decisions to the public law in
international matters. It is, of course, apparent that such
decisions are sometimes not the law, since they are occasionally
in conflict as between two countries. They are, nevertfaeleaB,
one of its important sources.
LIMITATION AND PRESCRIPTION. 4199
<<In some of the cases argued long periods have intervened
after due notifications of claims by the United States Govern-
ment to that of Venezuela, in which no official mention of them
is made by either government. It is urged that such lapses
should, on general principles, be held to operate peculiarly
against claimants. Though the question is not involved in
this case, we have considered it, and have thought it worth
while here to say we are unable to find authority or a satisfac-
tory footing for this insistence as a general proposition. There
are so many things that may induce one government not to
press pending demands against another, disconnected with the
demands themselves, consideration for the condition and wel-
fare of the debtor state itself being prominent among them,
that we are disposed to think the true and, so far as we are
advised, the usual way is to regard time in such cases, in
the absence of circumstances evincing abandonment, as no
respecter of persons.
'^XJpon these principles, too lengthily discussed, without
awaiting further proof called for in defense from Venezuela,
we disallow claim No. 36. It was withheld too long. The
claimants' verification of the old urgent account of 1841,
twenty-six years after its date, without cause for the delay,
supposing it to be competent testimony, is not sufficient under
the circumstances of the case to overcome the presumption of
settlement."
Little, commlBsioDer, for the commiBslon, John H, WHlianis v. Venezuela^
No. 36y United States and Venezuelan Commission, convention of Decem-
ber 5, 1885.
In the case of Ann Eulogia Oaroia Cadiz, now
Oaae of Ann Eologia known a« Loretta (i, Barherie, v. Venezuelay No. 47, Mr.
Oaroia Cadii. Findlay delivering the opinion of the same commission,
said :
"At the threshold of this case there is a Jurisdictional qnestion which
might give riHe to Hcrions difficulty if the claim was well founded in other
reMpects. Hy the terms of the treaty we are only at liberty to pass upon
such claims as were presented to the Government of the United States or
to its legation at Caracas before the iHt day of August 1868. The papers
in this case were submitted by the legation to the old commission on the
Ist of August 1868, but there is no positive proof that they had been pre-
sented to the legation prior to that date, and by the strict terms of the
language above quoted would be exclnde^l. It appears, however, that
they were mailed from New York on the 22d of June 1868 to D. M. Tal-
mage, the commissioner of the United States, then engaged in the dis-
charge of his official dnty at Curacas, and in due course ought to have
reached him in time to have been filed with the legation before the 1st of
the following August. Had they been transmitted to the legatiovv vGk.^i^A.^^
(
i
4200 INTERNATIONAL ARBITSATIONa
of Mr. Talmage wo miji^ht have been willing to presume tiiat th^ wen
received in time t<> come within the terms of the present snbmianon; bnt^
sent as they were, there is no presumption to be made in taivor of their
timely receipt. The questiov, however, is not a very important one,
t>ecause on examining the papers and proofii submitted we must reject
the claim upon other ^>uiid8 which go to its merits. The petition alleges
that .loH<^ Felix Giurcia Cadi/, was a citizen of the United States, and thai
he acted as agent for au a^ont of the Government of Venezuela to purchase
armH for her forcoH then engaged in tlie war for independence, and thai
in the performance of this service he was cansed to suffer a pecuniary loss
which is variously stated, and in such a loose and unsatisfactory manner
that we can neither discern tlie precise nature of his ii^ury nor the extent
of liis losHCs. The contract under which it is claimed he was acting is
not among the papers, nor do they Hupply the evidence by which we can
ascertain it8 terms. It appears, however, to adopt the language of the
petition, 'that during the yc^ars 1810, 1811, 1812, and thereabmiUf the said
Cadiz was the a^ent of the Venezuelan Government in the United States,
acting by re<|ue8t and under the direction of Don Juan Vicente Bolivar,
then agent of Venezuela in the Kniteil States of America, and as such pur-
chased anuH, in the ne'ujhhorhood of live thousand muskets, for the Ven>
ezuelan (lovernment. at twelve (12) dollars each, for which he was obliged
to ]>ay in part, and on which he advanced considerable of his own money,
and for which tlie Raid Holivar as agent for the said Venezuelan Govern-
ment a^n^d that he hIioiiUI he paid.'
'* Reference is then made to a petition of his brother, Don Ramon Garcia,
dated July 28, 1811, and the ])aper8 thereto annexed, as supplying the
evidence which Hupports the averments of fact as above quoted. An
examination of these pa}H'rs nhows that they consist of a letter addressed
to some one as ^Most I*uis.sant Sir,' and who, fVom the context, would
ap]»ear to liave been a ])erH(ui in high authority in Venezuela, particularly
as the writer expects a ^rcat deal from the equity of this individual,
whom, in the closin*; paragraph, he styles 'Your Highness.' This letter
is dated 'Caracas, .hilij es, /.s7/,' and. although apparently written by
Don Ramon (iar<'ia, is not si<;ned hy anybody. This is the foundation of
the claim, and it rests, tlierefore, u})ou au unsigned letter addressed to
nobody. The claim, in fact, like an air plant, seems to draw sustenance
from every 8onr<'e excejit its roots. <>n examining it, however, we find
that the case made does not accord fully with the facts as alleged in the
l»etition. Tlie case as presented hy the letter represents Joseph Cadiz as
being exposed to an action by the manufacturers for breach of contract,
and as certain to sutler in credit by the failure of Venezuela to take all
the muskets ordered, besi<lcs sutrering a direct pecuniary loss by the
advance of* $:»,(KX) on account of muskets and the payment of as much
more on account of Rolivar, who had ajjreed to advance it, but failed.
** There is no mention made of any loss suffered by the claimant in con-
sequence of the dilference between the price paid for the muskets and the
proceeds of the sales of cotfe(» Utr which they were bartered.
"Appended to this letter, liowever, is a statement of account, under
date of Julif 12^ ISx^.l^ purporting to have been ma<le hy Joseph Cadiz, and
which is entithMl * A statement of the <lebt and it« int-erests of Don Juan
Vicente Bolivar, agent of \'ene/uela in tlie Tnited States of Amerioay
LIMITATION AND PRESCRIPTION. 4201
dnring the year 1811.' In this account Cadiz charges for $10,851, with
eleTen years' intereet on the same, $6,161, as a som of money dne him on
3,617 mnskets at $12.50 apiece, explainhig the item as follows : ' These
moskets were bartered for coffee at the rate of 100 lbs. of coffee for each
masket ; and, the coffee having been sold in Philadelphia at $9 per 100 lbs.
to meet the mannfactorers' claims,' etc., there ^as a difference as above
stated agaiDst the accountant of the principal snm of $10,851.
" Here, then, is a claimant who, through his brother and agent in 1811,
is alleged to have complained to some anonymons body in Venezuela that
he had been injured by the refusal of the agent of that government in the
United States to carry out a contract with respect to the purchase of mus-
kets, and yet who fails to mention what in eleven years afterwards, accord-
ing to an account then made up by him, becomes one of the principal
items of his loss. Not only so, but the claimant himself, in making up
this account, does it so loosely that he makes an error of $1,808.50 in the
3,617 muskets item, charging for them $43,404, at $12.50 per musket, which
at that rate would yield $45,212.50. It is true this error is against him,
but as an evidence of the looseness with which the account is stated it
matters not on which side of the column it occurs. A man with a bona
fide claim and a reasonable expectation of having it paid does not usually
fall into such errors. There is another thing to be noticed in connection
with this account. The lot of 583 muskets complete with bayonets is
mentioned as having been 'taken along with him ; ' that is, Bolivar. The
other lot of 3,617 is called ' the remainder received from the manufacturers,'
and would appear to have been paid for in coffee, which fell short of the
agreed price by $10,851. Were these muskets received by Venezuela or
nott The letter of Don Ramon Garcia before referred to, under date of
July 28, 1811, and which constitutes the first presentation of the claim-
ant's case, in its general tenor would seem to very pointedly indicate that
the 5,000 muskets bargained for in some way by Cadiz and Bolivar had
not been delivered. The language of Don Ramon is as follows : ' But on
asking of the above-mentioned agent, Don Juan Vicente Bolivar, the
amount which was to be paid as first installment, the agent refused to pay
it, and Don Jos^ Felix (meaning Cadiz) was left to pay the debt' (that is,
as we understood it, the first installment). The writer then goes on to
say : 'And as about that time Don Telesforo Orea succeeded Mr. Bolivar
in the agency and authority of the same, when the time for the fulfiUment
of the contract for the 5,000 muskets was up Don Jo86 Felix (that is,
Cadiz) called on Bolivar, who told him to see Orea about the matter. He
did so, but Orea sent him back to Bolivar; therefore (italics ours) the
brother of the undersigned (although, as we have before stated, the letter
is si}i:ned by nobody) is greatly exposed to be ruined tf, as it »eem9 natural,
the manufacturers $ue him and take pottsesHon of his goods* (italics again ours).
''From this statement it would appear that the muskets were not deliv-
ered, and that what excited the fratorual solicitude of Don Ramon was
the fear that his brother would be sued for a breach of contract. Besides,
it may be accepted as a fact which requires no proof that the manufac-
turers would not have parted with their property until they were either
paid or secured. But, again, the letter goes on to say ' the undersigned
can not forbear regretting, in the first place, the detriment caused to this j
province and its confederates by not having teoured the considerable number m
4202 INTERNATIONAL ARBITRATIONS.
of arms which were hargainod at sach a good price, considering that the
Government of the United States pay 50 cents more for each musket.'
If this language has any signiiicance at all, it can only mean that Don
Ramon, in 1811, in the possession of letters recently received, as he states
in this same letter hefore quoted, from his brother in the United States,
complaining of the course of Bolivar, understood tbe cause of grievance
to be that the claimant had made a bargain for muskets which he was not
able to fulfill, and that his liability to a suifc for breach of contract,
together with certain money he had advanced in part payment for the
muskets, constituted his claim. In 1823 the claimant, as we have shown,
appears to have enlarged his claim, and it then appears as if the muakets
had been delivered, but he failed to realize in full what was agreed to be
paid for them, by reason of the coffee which was taken in exchange not
bringing as much per pound as had been anticipated.
''There is not the slightest evidence in the papers that this anonymous
letter and tbis account, neither of them sworn to, and constituting the
grounds of claim, were ever presented by anybody to anybody. There is
I a minute at the bottom of the letter, also unsigned, which reads as fol-
r lows: * The executive power ordered Don Telesforo Orea to fulfill the con-
tract, provided that its terms were not very unreasonable. This was
substantially the decision, and the order was sent to him thereupon.*
From this it would appear, however, that the contract had not been fut-
F filled, and the muskets not delivered, and the relief desired and obtaiue<l
f by the claimant was the escape from liability for a breach of the contract.
r '' The claimant appears to have left the United States shortly after
L these occurrences and taken up his abode in different parts of South
r America, not returning, however, to Venezuela. He finally settled in
Santiago de Chile, from wliich place it would seem from an indorsement
on the account before mentioned, he communicated with his brother Don
Kamon, then in Caracas, concerning his claim. He accordingly sent this
j account; togetber with all the papers in his case, to this brother, with full
J power of attorney, under date of the 3d of May 1823, to collect and receive
J 'all the amounts due to him in the Republic of Colomhiaj and specially that
.] he may demand and collect tbe amount specified in the documents attached
I to this power of attorney.' What was done with tbe claim, and under
I this ]>ower, appears from the affidavit of the present claimant, a daughter
, of Mr. Cadiz, made in New York on February 28, 1890, in which she says
,1 'that according to deponent's best knowledge, information, and belief^
H the family of Ramon, from 1823 to about 1866, all of which time they had
j; charge and possession of the papers on which this claim is founded, never
collected nor received anything on account of the claim in question, and
I never endeavond or undertook to collvct the said claim.' * * * So it slnm-
|. bered for more than forty years, until the papers were sent to Mr. Tal-
mage in the summer of 1868, as before described, and having been disal-
lowed by the commission of which he was a member, because it 'was not
filed with the United States legation previous to the organization of the
commission,' it now comes before us, after the lapse of nearly eighty
years from the origin of tbe claim. Both the original claimant and his
brother Kamon, to whom the power of attorney was given, appear to have
died in 1823, but while the power was thus revoked, there is no reason
why the parties interested should not have ])resented the claiqi, either in
LIMITATION AND PRESCRIPTION. 4203
the tribunals of VeDezuela or through tho good offices of the United
States, and not having done so when the circumstances in which it orig-
inated were comparatively receuti not even endeavoring or undertaking to
collect it, but sleeping on their rights for nearly a half century, we are
of opinion that the consideration of such a case, even if we could ascer-
tain with reasonable certainty what it was, would do violence to every
principle of sound policy and open the door for the admission of any
claim, however stale and obscure. It is true that this commission is an
international tribunal and in some sense is not fettered by the narrow
rules and strict procedures obtaining in municipal courts, but there are
certain principles, having their origin in public policy, founded in the
nature and necessity of thiugs, which are equally obligatory upon every
tribunal seeking to administer justice. Great lapse of time \h known to
produce certain inevitable results, among which are the destructiou or
the obscuration of evidence, by which the equality of the parties is dis-
turbed or destroyed, and, as a consequence, renders the accomplishment
of exact or even approximate justice impossible. Time iteelfie an umrrit-
ten statute of repose. Courts of equity constantly act upon this principle,
which belongs to no code or system of municipal judicature, but is as
wide and universal in its operation as the range of human controversy.
A stale claim does not become any the less so because it happens to be an
international one, and this tribunal in dealing with it can not escape the
obligation of an universally recognized principle, simply because there
happens to be no code of positive rules by which its action is to be gov-
erned. The treaty under which it is sitting requires that its decisions
shall be made in conformity with justice, without defining what is meant
by that term. We are clearlj' of the opinion that in no sense in which
the term is used would it be just for us to make an award which would
require the levying of a tax on the whole present population of Venezuela
to pay a claim which originated before nearly all of the oldest of them were
horn, and which is presented at a time when it is impossible to say
whether it is well founded or not, the delay being without excuse or juM-
tificatiou; and we accordingly reject the claim and dismiss the petition."
i
CHAPTER LXX.
MEASURE OF DAMA(iES.
<^TIie last question which occurred at the
OBaeofthe^'Betqr:" i)oard iu this case respected the rule of com-
Qneitioii to: p^ng^i^j^u ^q ^^ applied to it in relation to the
PitifaiAj, cargo. The majority were of opinion that the
claimants were entitled not only to the value
of their merchandise, but tlie net profits which could have
been made of it at the port of destination, if the voyage had
not been interrupted.
^^ This opinion proceeded upon the supposition that the voy-
age was wrongfully interrupted, and upon that supposition
would seem to be free of exception. It has been questioned,
however, and I shall of course assign my reasons for adopt-
ing it.
'* There can be no doubt that the illegal capture and condem-
nation of this vessel and cargo have given to the claimants a
title to receive from the British Government the value of the
things of which they were deprived; but the question is,
whether they have not also a title to receive the profits that
might and would have arisen from them.
^^The right of the claimants to the cargo was a x>erfect one;
and for that reason they are authorized to demand compensa-
tion for its value; but this right wsis in no respect better or
more perfect than their right to proceed upon their voyage and
to make such profit of the goods as the situation of the des-
tined market would, at the tinieof the vessel's arrival, enable
them under all circumstances to make.
" When the claimants show (and a msyority of the board
have deternuned that they have shown it) that the cargo
belonged to them; that the voyage which the vessel (also the
property of one of them) had commenced was a lawful one;
that there was no ground u]>on which she could justifiably be
seized or detained — they prove a complete right to prosecute
that voyage without molestation, and to acquire such advan- M
4206 INTERNATIONAL ARBITRATION&
tages therefrom as in tlie course of trade might fEiirly be
calculated on.
*^ According to a written opinion filed by one of the board on
this occasion, no compensation is due for the violation of this
latter right, for it states 'that to reimburse the claimants the
original cost of their property, and all the expenses they have
actually incurred, together with interest on the whole amoant,
would be a just and adequate compensation.' But what sab-
stantial reason can be assigned why one of the claimants'
rights shall be selected as a proper object of compensation,
while another of their rights, equally indisputable and equally
violated, shall be left without any compensation at allt No
compensation for an injury can he just and adequate which does
not repair that injury; but he who wrongfully deprives me of
a lawfiil profit, which 1 am employed in makipg, can not be
said to afford me reparation until he has given me an equiva-
lent for the advantages of which he has deprived me, to which
advantages my right was as unquestionable as the right I had
in the things from which they were to arise.
*' I Kuth. Inst. Natl. Law, p. 405, sec. 5: *In estimating the
damages which anyone has sustained, where such things
as he has a perfect right to are unjustly taken from him, or
withholden or intercepted, we are to consider not only the
value of the thing itself, but the value, likewise, of the fruits
or profits that might have arisen from it. He who is the owner
of the thing, is likewise the owner of such fruits or profits, so
that it is as properly a damage to be deprived of them as it is
to be dei)rived of the thing itj^elf.' But it is to be considered
whether he could have received those profits without any
labor or expense, because if he could not, then in settling the
damages for which reparation is to be made the profits are
not to be rated at their full worth, but an allowance is to be
made for the labor or expense of collecting or receiving them,
and when the labor or exi)envse is <le(lucted from their full
worth, the remainder is all that he has lost, and consequently
.is all that he has any title to demand.
"Id. p. 400: *In rating the damages which a man has sus-
tained we are to estimate something more than the present
advantage which he has lost, for the hope or expectation of
future advantage is worth sonietliing; and if such hope or
expectation is cut off by the injury the value of it is to be
allowed him. We must, however, in estimating this hope be
MEASURE OF DAMAGES. 4207
careful not to estimate it as if the advantage were in aetnal
possession. Proper deductions are to be made for the acci-
dents which might have happened to disappoint his exx)ecta-
tions, and in proportion as these accidents are greater or more
in number or more likely to happen a greater abatement is to
be made in consideration of them, etc'
'' Id. p. 409, sec. 8: *Not only the damages which a man sus-
tains from an unlawful act are chargeable upon them who do
the act, but those damages are likewise to be made amends for
which are the consequences of such act.'
"The foregoing quotations are supported by Grotius, B. 2,
ch. 17, sec. 4 and 5; and also by Puff'endorf.
"It is to be admitted that, in the case before the board, the
claimants' prospect of profits (provided Insurance had not
been done upon both profits and cargo) was not entirely cer-
tain, for the cargo might have been damaged or lost; and, of
course, in the language of Rutherforth, we should be careful
not to estimate those profits as if they were in actual posvses-
sion. But it is also evident that the profits were just as se-
cure as the cargo itself^ and were subject to no other risk than
the cargo was exposed to. With a view to prices there was
no risk at all, since we resort to the prices which are proved
to have been those at which the cargo might have been sold
if it had arrived. In that respect we have facts by which to
regulate our estimate and not possibilities.
"If, then, the danger of loss of or injury to the cargo was
the only circumstance which rendered the claimants' profits
precarious, it is extremely easy to make an allowance for that
hazard in the same manner as in ascertaining the value of the
cargo itself. We have only to make a proper deduction for
the sea risk, and for this the rate of insurance upon such a
voyage as the vessel was engaged in will furnish us with the
best possible rule. The rate of insurance is the value of the
hazard, and it is that criterion upon which we may safely rely,
since it is that value which is uniformly paid and received for
the sea risk by those who are able from their pursuits and in-
duced by their interests to calculate it accurately.
"Some objections were started at the board against the
ascertainment of the probable profits by reference to the prices
current at the port of destination.
" It was said to be better to give 10 per cent on the invoice
price, and this was alleged to be and is the rule in the court
i
4208 INTERNATIONAL ARBITRATIONS.
of admiralty in provisioD cases niider the orders of April
1795. But it is obvious that this rule is au arbitrary one,
suggested indeed by a good principle, but not acting upon it
It supposes (what is true) that a claimant is entitled to com-
I)ensiition for his profits as well as for his capital, and so far it
adds weight to the foregoing remarks; but it can not pretend
to ascertain what those profits would be.
^^ Ten i>er cent may be either more or less than a just compen-
sation. It may be a good average rule among various claim-
ants (though, if it is so, it can only be by accident) ; but surely
it is no consolation to a claimant, who gets less than is due to
him, that another, with whom ho has no connection^ has gut
more. Our province is to render justice to each individual
complainant. It is not suilicient that our awards shall cover
the aggregate losses of all the different parties injured, unless
we distribute compensation in e<iuitable proportions.
^^ It is 8ui)ix)sed that there can be no certainty in estimating
profits with a view to the prices current at the i)ort of desti-
nation. I aui satisfied of the contrary. To ascertain the cur-
rent prices of the commodities composing the cargo at the
destined market at any given time is neither impossible nor
diflic'ult. What those commodities were, together with their
quality, may be shown by the ship's papers and other testi-'
mony. The deduction for risk is known at once by the rate of
insurance and the expenses of freight, landing, storing, etc,
and the amount of duties no person can be at a loss for.* The
principal reason asvsigiied for this uncertainty is the difiiculty
of fixing the precise in fiuence which the arrival not only of
the vessel in question, but of other American vessels detained
by British cruisers, contrary to the law of nations, would have
had upon the market, if they had been allowed to proceed upon
their voyage.
*'My answer to this is that any influence which can be
attributed to the arrival of the particular vessel in question
ought to be attended to, and that this is capable of a reason-
ably accurate calculation; but that the possible effect of the
arrival of other captured vessels upon the market is manifestly
improper for our consideration.
'^The claimants had a right to make, and would have made,
' "These observations arc (jonfiniKMl by the experience we have had of the
operation of the rule in the several cases to which it has been applied,
since it was first a(h)])te(l by the board. Its executiou has appeared to ht
easy and its result certain/'
MEASURE OF DABIAQES. 4209
Bach profits of their voyage as the actual (not the possible)
state of the intended market wonld a£ford. The circnmstances
b'y which that state was prodnced (whether the wreck of other
vessels boond to the same port, or their illegal detention by
British or other cruisers) could neither make a change in their
right nor extenuate the violation of it. I can not, for my own
I)art, perceive anything monstrous in this opinion, but I can
see much room for objection to the opposite doctrine ^ that
although profit is the lawful object of a merchant, although he
has a right to make such profit as the real, not the hy])othetical,
situation of the projected market holds out to him, yet that a
belligerent, unjustly interfering with that right and wresting
from him the e£fect of it, is not bound to grant him retribution
commensurate with the actual damage, because if it were not
for the unlawful conduct of that belligerent towards various
other neutral merchants the actual damage might have been
lessj*
^*' If the prices of merchandise at the port of destination had
been inflamed by the act of Ood (the wreck of many vessels
bound to that port) it is not supposed that we ought to con-
sider in the estimate of the neutraPs probable profits the influ-
ence which the arrival of the vessels so wrecked might have
had upon those prices. In such a case it is agreed that the
neutral is to be compensated (if he is to be allowed any profits
at all) with a view to the real state of the market, or at least
that nothing is to be deducted for any change which that state
might have undergone if the vessels had, instead of being
wrecked, brought their cargoes to their intended ports; and
yet one would think that the belligerent would be more at
liberty to set up the act of God, to which he was no party, in
extenuation of the retribution required of him, than acts of
injustice theretofore committed by that very belligerent, or its
commissioned cruisers, towards the fellow-citizens of the claim-
ants. It does not appear to be very satisfactory argument to
say that the rule adopted by the board is uncertain, although it
acts upon things as they are, because a state of things not exist-
ing might have i)roduced an incalculable variation; and the
argument is the more especially unsatisfivctory when it is con-
sidered that this alleged uncertainty, which a belligerent is
made to urge as the means of evading reparation for a wrong
to the actual extent of the loss resulting from it, has been con-
fessedly produced by the illegal conduct of that belligerent or
those acting under its authority* When it is recommended to
f
ll
M 4210 INTERNATIONAL ARBITRATIONS.
11
I •
I I
'\
US to desert the sure ground of facts to employ ourselves in
an impracticable calculation upon possibilities^ we should have
some stronger inducement to do so than merely to protect a
belligerent from the obvious consequences of its own injustice
or that of its commissioned subjects. When we are asked to
reject the fair rule of measuring the compensation for an injury
by ascertaining the complainant's right and the damage really
sustained by the infringement of it, we ought to have a better
reason for conipliance than that the damage might have been
less if the same wrongdoer had not previously committed
similar injuries.
^<If we are to abandon the criterion which the actoal prices
current offer to us, I do not know a substitute so inadmissible
as that suggested. It rests upon the most exceptionable of all
principles, that he who does wrong shall be at liberty to plead
his own illegal conduct on other occasions as a partial excuse.
It is said, in<leed, that the British Government will be injured
in the aggregate of compensations awarded if the possible
influence of the total of illegal captures on the market is
excluded from consideration. Doubtless, if it be true that
these captures raised the price in the different markets
(which I am not convinced of), and if each claimant is com-
pensated with a view to that price, the aggregate amount of •
all the compensations will be more than the claimants would
have collectively received as profits if every vessel so captured
had arrived at her i)lace of destination. But we are not ren-
dering Justice in the aggregate, nor is it possible to do so with-
out producing particular injustice. Complainants do not come
before us as a body with one case and upon one bottom, but as
unconnected individuals setting up distinct rights and com-
plaining of distinct losses. Each complainant's case is entitled
to be determined according to the injury which that complain-
ant has received, and it can be no reason for not indemnifying
him to the extent of it that his loss would not have been so
great if none others could (tomplain of the like violence to their
neutral rights.
''If a thousand illegal captures had preceded that of the
Betsey and raised the price of the articles with which she was
freighted, the only consequence would be that the claimants
had an undoubted right to avail themselves of that raised
price, and that Great Britain, having no possible right to pre-
vent them, but choosing (or at least her cruisBrs choosing) to
interfere with their title, must make reparation equal to the
MEASURE OF DAMAGES. 4211
damage such as it wdSy not snch as it might have beeu under
circumstances not existing.
<^ It is immaterial whether the pros];)ect of profit was bettered
by tlie same persons that wrongfully prevented it from being
realized, or by other persons, or by mere accident. It is
enough that the profit might lawfully be made, that the claim-
ants were lawfully emi>loyed in making it, and that the British
Grovernment (or its commissioned captor) unlawfully interposed
so as to defeat their efforts. The right existed, with a view to
the profit actually attainable^ without reference to the circum-
stances that made it attainable; and, the right being ascer-
tained, the compensation is inadequate unless it is coexteusive
with it. We need not be apprehensive that any injury will be
done to Great Britain by this mode; for it will not pay to any
complainant more than a compensation for the actual loss q,nd
damage sustained by him, as expressly stipulated by the treaty.
*<It is observed in the written opinion already quoted Hhat
the claimants appear to have forgot that if neutrals are to
enjoy the benefits arising firom a state of war, they must be
content to bear part of its inconveniences, or, on the other hand,
if they claim to be exonerated from all the risks and incon-
veniences of war, they must agree to forego its advantages.
They are not to say, "Give to my commerce the security of a
state of peace, but give me the profits of a state of war." The
risk and the profit are the counterpoise to each other.'
"This may be admitted; if I understand what it means,
every neutral trader does and must stand that risk which
the law of nations annexes to the state of war. A netltral
who trades in contraband hazards confiscation. A neutral
who trades to a besieged or blockaded port with notice runs
the same hazard. A neutral who carries enemies' goods runs
the hazard of search, seizure, detention, etc.
" The Inconveniences to which the status belli subjects neutral
commerce are that it can not be carried on so freely as in time
of peace; that a neutral nation can not trade with either of
the belligerents in certain articles, or at all to such ports of
either as are in a state of siege or blockade; that it can not
carry the goods of either without being subject to search and
detention; and In short, that in the prosecution of its trade
it must observe an impartial neutrality.
"These are the risks and inconveniences to which a neu-
tral must submit because the law of nations imposes them on
him.
5627— VOL. 4 62
e
I •-
I
. t
■i
1
\\ 4212 INTERNATIONAL ARBITRATIONS.
)
' "If any other risks or inconveniences (such as the risk or
inconvenience of illegal seizure and confiscation) are intended
1 by the above-cited observations, it need only be said that they
are not such as the law of nations authorizes, however they
may be arbitrarily imposed by one or all of the powers at war.
Let us now compare the above-cited observation with the con-
sequences deduced from it. ^To reimburse the claimants the
original cost of their property^ and all the expense^ they have
actually incurred, together with interest on the whole amauntj
would be a just and adequate compensation.' *To add to the
original cost of the property a reasonable mercantile profit^ 9uck
as is usually made in time of pea^'e, would amount even to a
very liberal compensation.'
'^According to this opinion, then, taken together, the neutral
' shall incur all the risks and inconveniences of the status belli,
and yet shall have either no profits at ally or only the peace
I profits,
"The law of nations imposes restrictions upon nentral com-
merce during war which the belligerents may and do enforce.
i If the neutral attempts to carry on a trade which the state
of war renders unlawful to him, his property, says the law of
! nations, shall be confiscated. Here (as in many other respects)
j the inconveniences of the state of war operate upon him. But,
J again, says the above opinion, if he is carrying on a lawitd
trade, and his property is seized Jind confisciited by one of the
j powers at war upon some illegal pretext, he is to receive as a
compensation either no more than the invoice price of his
goods, or that price and the i)ea('e profit. Where, then, are
• the war profits to be set against the war inconveniences f
■ You enforce against the neutral the inconveniences and risks
j to which he is liable, and yet yon do not permit him, in cases
i where his conduct is unexceptionable, to make or enjoy the
; profits which, it is lulmitted, are and ought to be their
counterpoise.
"If, in one instance, a lawful neutral trade can be inter-
rui)ted by a belligerent, on the terms of paying to the party
aggrieved only the first cost of his merchandise, or that and the
j)eace profit, it is evident this can be done in every instance.
' Who does not see that, if this doctrine be true, a state of war
burdens nentral commerce with the restraints and disadvan-
tages lawfully incident to that state, and yet that a nentral
MEASURE OF DAMAGES. 4213
can in no circamstances be entitled to the war profits, or,
indeed, any profits at all, as a counterpoise to them, if either
of the belligerents has the power and inclination to seize apon
his property?
^^ What becomes of the admission that l;he war profits are
the neutral's compensation for the inconveniences to which the
law of nations subjects the commerce of his nation, if it is main-
tained that these war profits are rightfully at the mercy of
such of the belligerents as shall be strong enough to defeat
themf
^^ If I were to make the claimants speak upon this occasion,
I would make them say, ' the trade of our nation is by the law '
of nations subject to certain restrictions resulting from the
state of war in Europe, in consideration of which such of our
citizens as do not violate these restrictions, and conform them-
selves to their neutral duties, are entitled to the war profits.
We have not violated these restrictions; we have conformed
ourselves to these duties, and were of course entitled to make
the war profits. You have prevented us from obtaining them
by an illegal seizure and confiscation of our vessel and cargo,
and we now claim retribution eqtial to th^ injury.^ What could
be rei)lied to thisf
" We are told that the invoice price is the measure of com-
pensation usually adopted by all belligerent nations, and ac-
cepted by all neutral nations. I understand that this is not
even at present the case in this country. Where the property
lias been sold the net proceeds are given in ordinary cases, and
in the provision cases the invoice price and 10 per cent profit
was given. Mr. Gore hiis referred to an adjudged case to
prove that in Eng4and the very rule adopted by the board has
been heretofore in practice. But it is not likely that there is
to be found anyone rule which has been received and adhered
to in the courts of admiralty of all countries or even of many
countries.
^^ It is also said < that the trade in which this vessel was
engaged was barely not unlawful,'' and this is suggested as
proper to infiuence the quantum of compensation. But if the
trade was not unlawful it was surely as lawful as any trade
can be. I know of no mode by which the absolute legality of
a tra<le can be proved, in reference to the law of nations, but
by showing that this law does not })rohibit it. Such, it is
4214 INTERNATIONAL ARBrrBATION&
admitted, was the trade in which the Betsey was employed,
and I c4in not conceive how any trade can be said to be lawAil
in any other sense. If the trade was lawfal at all, it was com-
pletely so, and of course was entitled to security as far as any
trade could be so entitled. There is no medium between legal-
ity and illegality. It is true there are certain illegal acts more
ii^jurious and more wicked than others, and consequently
requiring and justifying heavier punishment; bat it is in-
comprehensible how an act confessedly legal can ever be the
object of punishment, ui)on a loose idea that it was barely not
unlaic/uL^
^< It is said Airther that the treaty intended to substitute a
new mode, not a new measure^ of compensation. Upon the
(piestion of jurisdiction, I have understood it to be urged that
a new meatture of compensation was almost the only object of
the treaty. We have been supposed to have the iwwer of
relieving in cases where the lords have given only the net
proceeds, in consetiuence of the rule to that effect in the
prize act — and in cases of seizure under the orders of coun-
cil, where the lords are bound to refuse costs and damages
against the captor. Hut it is in vain that we have i)Ower U*
entertain these cases, if we are not to introduce any new
measure of compensation, however justice may require it. If
we are to adopt the measure of redress applied by the lords,
our jurisdiction in such cases is a ridiculous nonentity. But be
this as it may tlie words 'adequate compensation' and 'full
and conii»lete comi»ensation,' to l)e found in the seventh article
of the treaty, do not warrant the above interpretation of it
" 1 have thus stated the principal reasons which have gov-
erned my Judgment in the case of the BeUtey. I have not
been able to av()i<l the discussion of such objections as have
been insisted on ngainst the opinions I have delivered on the
several points that have occurred in the progress of this case.
For such of the (commissioners as differ from me I feel the best-
founded respect; but I could not explicitly detail the grounds
of my own decisions on this occasion without noticing topics
that were believed to militate against them, and with that
impression have been put upon our files.^
Opinion of William Pinkiiey, com mi 88 i oner, July 1, 1797, case of the
Betsey y Fnrloug. mawler; Article VII., treaty between the United States
and Great Britain of November li», 17i>4.
' Vid. 1 Burlamaqui, 116,
MEASURE OF DAMAGES. 4216
Sir John NichoU delivered the following minority
Minority Opinion of opinion :
Sir John HioholL '* The claimants demand [compensation] not only for
those [losses and damages] arising from the condemna-
tion, bnt for all those in any degree resulting from the original capture.
"This demand depends upon the consideration whether or not there
was probable cause of seizure and of bringing in the vessel and cargo for
legal adjudication.
"And when the two regular tribunals of the belligerent state (which
by the general law of nations are alone competent to decide on captures),
and when two members out of five who compose this board, all acting
under the most solemn obligations, have concurred in holding that the
most considerable part of the property is even subject to confiscation, it
seems to me (without entering iuto other reasons) that at least there was
probable cause for putting the matter into a course of judicial inquiry,
and that the demand of compensation for all losses and damages resulting
from the time of capture is wholly unfounded.
"The last matter of any very material importance to be considered is
the demand made, not only for loss and damage actually incurred and out
of pocket, but also for the loss of the profit that might have been made if
the cargo had arrived and been sold at its port of destination.
"The claimants, in making this demand, appear tome to have forgotten
that, if neutrals are to ei^oy the benefits arising from a state of war, they
must be content to bear part of its inconveniences; or, on the other bund,
if they claim to be exonerated from all the risks and inconveniences of
war, they must agree to forego its advantages. They are not to say ' give
to my commerce the security of the state of peace, but give me the profit
of the state of war.' The risk and the profits are the counterpoise to each
other.
"A claim is here made of a profit of near one hundred x>6r cent. This
is scarcely ever heard of in time of peace. If it existed at all, it existed
only in consequence of the war and the risks that usually aocx>mpany it.
"To reimburse the claimants the original cost of their property, and all
the expenses they have actually incurred, together with interest on the
whole amount, would, I think, be a just and adequate compensation.
This, I believe, in the measure of compensation usually made by all bel-
ligerent nations and accepted by all neutral nations for losses, costs, and
damages occasioned by illegal captures.
"To add to the original cost of the property a reasonable mercantile
profit, such as is usually made in time of peace, would, in my opinion,
amount even to a very liberal compensation.
"But the demand that is set up of the profits that might possibly have
been made if the cargo had arrived and been sold at its destined port,
when it is recollected that the trade itself was barely not illegal, it being
opened by the enemy to the neutral, in a great measure under the pressure
of war; that the profits of this trade wore highly inflamed by the war,
the French West India colonies being under a necessity of selling their
produce at a yery low price to neutrals who conveyed it circuitously to
Europe; and the prices in Europe, from the same causes, being very high;
that the prices were further raised in America at the period in question
by the general order that had existed to stop all American vessels engaged
1 1
4216 INTERNATIONAL ARBITRATIONS,
in that trade ; when it is further recollected that the prices at Balttniore
were probably increased by the capture of seyeral vcBsels detained in (sie)
that port, and in some de^ee by the capture of this very vessel (for it
would be almost monstrous to insist that in making compensation for
these captures the inflamed price occasioned by the very captures them-
selves is to be paid) ; added to this the extreme difficulty of ascertaining
the amount of these profits under all the risks with any de^n^e of rational
certainty; under all these circumstances, the demand, I say, of these war
profits at the same time the British Government is about to compensate
the citizens of America for all the actual losses resulting at this period
from the state of war, and to indemnify them by a new and extraordinary
mode of relief from these costs and damages, which other nations are con<
tent to seek only in the ordinary course of justice, appears to me highly
nnrcasonable. It is a demand that, in my opinion, is not consistent with
the true meaning of the treaty it«ielf, which intended to substitnte in thiB
respect a new mode and not a new measure of compensation. It is a
demand not supported by that reciprocality — by that maxim of taking
advantage and disadvantage together — which is the very foundation and
spirit of equity, justiee, and the law of nations/'
In the preceding case the commission held
Decision of the Com- ^^^^ ^^^ ^^^^ ^.^^j^ ^^ compensation was "the
net value of the cargo at its port of destination
at such time as the vessel would probably have arrived there."
In the subsequent case of the Neptune the
"^ ^ ♦« ^»» ^^ ^"^® ^^^*^ again applied, but its application
was resisted by Sir John Nicholl on grounds
other than those on which he opposed it in the case of the
Betsey. The Xeptunc was seized under an order in council,
issued in April 1795. Though this order was not published^
its purport, as collected from the evidence in the case, was
assumed to be substantially the same as that of the additional
instructions of June S, 179.'^, by which commanders of British
ships of war and privateers were directed to stop and detain
all vessels laden wholly or in part with corn, flour, meal, and
other articles of provisions therein specified, bound to any
port in France, etc., and to send them to such ports as might
be most convenient, in order that they might be purchased
by the British (Government. The Neptune^ when seized, was
laden partly with rice, and was on a voyage from Charleston
to Bordeaux; and she was sent to London, where proceedings
were taken against her in the high court of admiralty. The
court of admiralty ordered the cargo to be sold to His Majesty's
government and the proceeds to be brought into court; and
subsequently, on a claim being made in the usual form, de-
creed restitution of the cargo or the value. The question of
MEASUEE OF DAMAGES 4217
valae was then regularly referred to the registrar and mer-
chants, who, according to the rule prescribed to them by the
British Government and against the protest of the claimants,
allowed only the invoice price and a mercantile profit of 10
per cent. The claimant demanded that the value should be
determined to be what the cargo would have produced at the
port of destination at the time of its probable arrival.
Before the board of commissioners it was urged, on behalf
of the British Government, that the rule applied in the case of
the Betsey should not be administered in such cases as that of
the Neptune, on the ground (1) that the order in council in
question was made when there was a prospect of bringing the
enemy to terms by famine, and that in such a state of things
provisions bound to the ports of the enemy became so far con-
traband of war as to justify Great Britain in seizing them on
the terms of paying the invoice price, with a reasonable mer-
cantile profit thereon, together with freight, demurrage, and
expenses; and (2) that the order was justified by necessity, the
British nation being at that time threatened with a scarcity of
provisions.
The board, by a majority vote, refused to recognize these
arguments as valid, and allowed damages in accordance with
the rule acted on in the case of the Betsey. The opinions are
given below :
<<A further question has arisen at the board
Opinion of Mr. Gore. ^ ^ ^^^ ^^^^ ^^ estimating the value of the
thing, or rather, in the words of the article, of estimating the
amount of a full and complete compensation for the loss and
damage sustained by the capture.
" The board determined in the case of the Betsey (Furlong)
to award the value of the article captured at the port to which
the vessel was immediately destined at the time of capture,
deducting all expenses and charges of transporting the articles
to such place and of sale.
" This was considered a proper and just rule of estimating
compensation for the loss and damage sustained by an illegal
capture. In the class of cases of which the present is one the
rule established by the British Government was the invoice
price and 10 per cent thereon.
" This rule, and any rule settling a value by the same ad-
vance on the invoice price of all cargoes, may, without hesita-
tion, be declared to be no rule for the consciences of those who
/
Il
4218 INTERNATIONAL ARBITRATIONS.
are bound honestly, diligently, impartially, and carefally to
examine every complaint according to equity, jastice, and the
law of nations; and, if the complaint is supported, to award to
the complainant full and complete compensation for the loss
I J and damage sustained. It may safely be affirmed that award
ing a certain per centum on the invoice price would frequently
. operate injustice to one of the parties. It might meet a few
cases, but it is not in the nature of things that it should be just
in all. If it affords more than a compensation for the loss, the
government, which is one of the parties between whom we are
impartially to decide, is injured; if less, the other party, viz,
the complainant, is injured.
*' The rule adopted by the board, after much reflection before
its adoption, appeared to me conformable to justice, equity, and
the law of nations.
" Since its adoption it has been censured by one member of
the board as inconsistent with the true meaning of the treaty,
as highly unreasonable, and contrary to what all belligerents
usually make the measure of compensation to neutrals, and
which is accepted by the latter for loss and damage occasioned
by illegal captures.
" This un(iualitied censure of the rule, and the constant pro-
test of His Majesty's agents against its fairness, led me to ex-
amine it more carefully. Such examination has confirmed me
in the opinion I first entertained, viz, that the rule is prescribed
by the law of nations, justice, and equity, consistent with the
true meaning of the treaty, highly reasonable and conformable
to the practice of the English courts, in estimating the damage
sustained by an irregular capture, between the individual cap-
tor and claimant.
"The following authorities prove that the rule is conform-
able to what the law of natious prescribes in case of an illegal
capture:
" 'Eeprisals are used between nation and nation to do justice
to themselves when they can not otherwise obtain it. If a
nation has taken possession of what belongs to another, if it
refuses to pay a debt, to repair an injury, or to make a just
satisfaction, the other may seize what belongs to it and apply
it to its own advantage, till it has obtained what is due for
interest and damage^ or keep it as a pledge till a full satisfac-
tion has been made.' (2 battel, .'U2.)
"*And now we are settling the notion of damage, we are
'/
MEASURE OF DAMAGES. 4219
fhrther to remark that it affects not only the thing itself,
which being either our possession or our due, is hurt, destroj^ed,
or intercepted, but likewise the fruits or profits accruing from
the thing, whether they have been already received (though
then, indeed, they maybe valued as particular goods or things),
or whether they are yet only in hope and prospect, if the owner
had a right of receiving them, provided still a deduction be
made of the expense he would have been put to in securing
and gathering in such fruits, lest he enrich himself at the
charge of the other party.
" ^ It is a clear ix)int that all evils or mischiefs following by
a natural consequence from any damage given ought to be
adjudged parts of it.' (Puff. 3, B. 1, C. 3 sec. : Grotius de Jur,
B. ac P. 2 Book, 17 0. 4 and 5 sees.)
" Vattel states the right of an injured nation, and the rule
it ought to prescribe to itself in making reprisals; the injured
nation may seize the property of the other and apply it to its
own advantage, till it has obtained what is due for interest
and damage^ or keep it as a pledge till a full satisfaction is
made.
^'The question here is on the case of an illegal capture.
What one nation has a right to exact it is the duty of the
other to perform, and this passage shows us the respective
right and obligation of states in such a case. Grotius and
Puffendorf give us the just construction of the term damage.
The rule adopted by the British Admiralty, in cases between
their own subjects, is not less liberal to the claimant than this
exposition of the law of nations authorizes, nor less liberal
than the spirit and letter of the rule agreed to in the case of
the Betsey. Among many cases that might be cited to demon-
strate this position, I will state only one which is quoted in a
common law court, to show the manner of estimating damages
in such a case. It was on the capture of a vessel bound to
Jersey, and will be found in Douglas's Ileports, page 574.
^<<In the case of the Bee^ Sir James Marriot, on the 4th
March 1779 condemned the captor in costs and damages, and
referred the same to the registrar and merchants to make rei)ort
thereon; the report contained allowances under different arti-
cles, viz, for the passage of passengers; for the sailors' wages
from the time of their capture till their arrival in Jersey, for
their expenses in the intermediate time, a particular sum to
two of them who had been carried to France, and detained as
4220 IKTERNATIONAL ARBITRATIONS.
prisoners, at so nmch per month during their stay there; for
the captain's exi>en8es for sandry ship's materials missing;
for repairs to the ship; for Hobins' expenses; for the loss of
part and damage done to the rest of the cargo, and tk^ ditninu-
Hon in the produce by the loss of the market; for demurrage; for
interest on two bills of exchange; for insurance on the ship,
freight, and remaining part of the cargo from England to
Jersey; for commission on the value of the ship and cargo,
and for the expense of reference.'
''The board, in the rule complained of, deducted all charges
and expenses of transporting the article to its destined port,
and the premium for which the party might have obtained an
assnrance of the vessel and cargo in her port of destination.
It did not 'eniianie' the price of the article by adding to it any
additional value — which was occasioned by this capture — no
such consequence was ever shown, or any grounds for appre-
hending a rise of price in the value of the article by reason of
this capture. If the seizure and detention did affect the price,
it became theduty of those who claim the benefit of such a sup
posed difference to show that it existed.
"In my opinion the price of the article was not raised by
this particular capture, nor by the general captures under
the orders of the 6th November. The reason on which I
founded that opinion, and which on reflection I think solid, is
that the value of the cargo, which was principally coffee, did
not depend on the demand for consumption in the United
States, but on its price in Europe, where by far the greater
part that arrived in the United States was transshipped for a
market. And this is particularly evident firom the following
fact : The price of the article was much lower during sixty
days when there was an embargo in the United States than
either at the time of its commencement or after its cessation,
and the embargo, it is well known, was occasioned by and
posterior to the captures under those orders.
** By comparing the rule adopted by the board with the doc-
trines of G^tius, Puffendorf and Vattel, we shall find that it
is conformabT^^to justice, ecjuity, and the law of nations as
understood by t>pse celebrated writers ; and it is presumed
that this is the rul\ prescribed to belligerents, and with which
alone neutrals are tnder any moral obligation to be content.
If there is any prin«dple that authorizes a belligerent to seize
on the property of i> neutral, on condition of paying him the
MEASURE OF DAMAGES. 4221
original cost, and all expenses actaally incurred, with interest,
and which deems sach to be a just and adequate compensa-
tion, it must arise from the voluntary or conventional law of
nations. The law of nations, as derived from the general prin-
ciples of justice and equity, states a different doctrine. If the
former exists among any European nations, it is unknown to
me. If there be such, it can have effect only on those who are
parties to it, by an implied or express consent. It can have no
influence on this board in defining their duty, for our two
nations are not parties to such rule. The one they have adopted
is very different. They have not stated that it shall be the
first cost, with interest and expenses, with a reasonable mer-
cantile profit thereon, such as is usually made in time of peace,
but have expressly contracted that it shall be such as shall
measure out to the party full and complete compensation for the
loss and damage stistained by reason of the capture.
<< No one will doubt that these terms establish a different
rule of compensation than the first cost with a reasonable mer-.
cantile profit, as in times of peace, however liberal such com-
pensation may be considered. In taking that rule you do not
take tlie one that applies to the case — some circumstances are
assumed which may or may not form a true measure, viz, a
reasonable mercantile' profit, and others are assumed, which
are known not to be true, viz, that it was a time of peace.
Now, it is well understood that the measure of full and com*
plete compensation for the damage that results from the inter-
ception of a voyage in time of war can very seldom be the
same as that for estimating a reasonable mercantile profit in
time of peace. The positive and inevitable construction of
these terms leaves no room to doubt that the parties intended
that the compensation should be made on different principles
than merely first cost and reasonable peace profits.
'^That this was their intention is still more evident from
consulting the eighteenth article of the treaty, where it will be
found that in cases where the capture shall be perfectly legal,
and where, by the existing law of nations, the property taken
shall be liable to condemnation, it is contended that the bel-
ligerent shall pay to the neutral the full value of the articles
with a reasonable mercantile profit theron. It is not said even
here, where all right to compensation is forfeited, that it shall
be stinted to the first cost, but shall be determined by the full
value; nor to such a profit as is usually made in time of peacOi
4222 INTERNATIONAL ARBITRATIONS.
bnt to sach a mercantile profit as might be deemed reasonable
at the time of capture, all circumstances considered^ of which
that incident to a state of war is unquestionably great and
imxx)rtant.
<^ It can not then be said to be highly unreasonable in the
party complaining, under a promise to afford full and complete
compensation for the loss and damage sustained by reason of
an illegal or irregular capture, that he should demand the price
at which he would have sold the article at the place where
he was going, to which price he had a perfect right, and would
doubtless have obtained, had he not been illegally captured;
neither could any sum of money be considered liberal which
did not a£Pord him a compensation for what he was thus pre-
vented from immediately acquiring. Hence it appears that the
rule we have adopted coincides with the duty of one nation
and the right of the other, in case of an illegal capture; that
it is literally conformable to the rule prescribed by the law of
nations in such cases; that it is consistent with the true mean-
ing of the treaty and just to both parties, and not more liberal
to the complainant than is warranted by the practice of British
admiralty courts, in estimating the compensation to be made
by one individual to another in case of ^n illegal capture.
"Another objection has been made, viz, that there is an
extreme difficulty in ascertaining facts necessary to fix this
value. The rule was agreed upon by all the board, except the
gentleman whose observations have been considered, upon the
idea that it was the only true mode of estimating the damages,
and that any other would be a mere compromise and ought to
be introduced only where the fjwjts reciuired to form the esti
mate could not be obtained. Many cases have been decided in
which it was necessary to obtain the price of various merchan-
dise from many parts of the United States, the West Indies,
and Europe. Hitherto no difficulty has occurred. Whenever
any arises from impracticability in obtaining the suitable tes-
timony, the board will be compelled to resort to some other
rule; but there is no reason for adopting one, confessedly
uncertain in its operation, in cases where one can be applied
that fixes the damage sustained without any uncertainty.
"It is evident from our practice under this rule, that if we
had taken any rate of advance on the invoice price, the gov-
ernment would have paid more in some cases, and in others
less than a compensation.
" This would not have been agreeable to the promise made
MEASURE OF DAMAGES. 4223
by the parties to this treaty, nor to the daty assigned to the
commissioners, viz, to ascertain the amount of loss and dam-
age sustained by the complainant, by an honest, diligent, im-
partial, and careful examination.
" It would seem from the opinion filed by Dr. NichoU in the
case of the Betsey j Furlong, that there had been a misconcep-
tion on the part of those who differed from him as to the grounds
of the opinion which he gave. I should have just cause of
regret if, in any instance, I had committed such an error, or
had taken loose observations from the printed cases or pro-
ceedings, or which had dropi>ed from any member at the board,
and had given them a weight tliey did not deserve.
** Those who will give themselves the trouble of recurring to
my opinion in that case, and to the evidence of any fact therein
stated, will find that no deductions arc made but from what is
manifest in those papers and expressly acknowledged by His
Majesty's agents, and from the reasons given by the high
court of appeals in their decree, and which have the same
authenticity as the decree itself.
^<No other authority was ever quoted at the board than that
of Grotius, which was remarked upon to show that the prop-
erty of George Patterson was liable to condemnation, and I
trust it will not be forgotten that the distinction of general
and special reprisals was then taken in the manner stated. If
this had appeared to have been a loose observation, dropped in
an unreserved discussion at the board, it would not have been
the subject of remark; or, if it had been so declared at the
time of delivering my opinion, I should cheerfully have erased
any observations thereon. It was not then even hinted at, as
I recollect. The sentiments of Dr. Nicholl were not read till
some weeks after.
^^If, therefore, gentlemen think the examination too minute,
on the principles of law which they have been ])leased to ad-
vance, they will impute it to the great respect I entertain for
everything that comes from those who difl'er from me in opinion.
*'I would most cheerfully dispense with placing any written
opinion on the files of this board if I could dispense with the
necessity that imposes it. That necessity is displayed in every
step of our proceedings. Personal considerations might be
waived. Those of public duty are not to be resisted.
"In every case that has yet been preferred. His Majesty's
agent has denied that the powers given to the board permitted
us to examine its merits. This construction of the powers of
4224 INTERNATIONAL ABBITRATI0N8.
the board is not made without the advice and direction of a
very high and respectable officer of the crown. One of the
members of the board has stated his opinion, in writing, that
on such questions it may be doubtful how far our decision will
be binding on the contracting parties; that the decision may
be revised and the reasons of each member required to appear.
In the present case a construction is put on the eighteenth
article of the treaty, which submits many important commer-
cial rights of the neutral to the will of the belligerent, and
raises a doctrine relative to the seizure of provisions, alwa} 8
denied and resisted by the United States, which construction
has been a great engine with the enemies of the treaty, not
only against its adoption, but with a view to destroy all hopes
of a friendly connection between the two countries.
''These things appear on our own files and forbid any hesita-
tion as to the duty which demands an equal exposure of the
grounds of our opinion in every case where such principles
and such constructions are attempted and such consequences
foretold."
Gore, commissiouer, case of the Neptune, June 30,1797; Article VII.,
treaty between the United States and Great Britiun of November 19, 1794.
"The majority of the board were for apply-
^^j^. ing the rule adopted in the case of the Betsey^
Furlong, i. e., 'the nett value of the cargo at
its port of destination at such time as the vessel would proba-
bly have arrived there.'
" One of the British commissioners objected to the applica-
tion of that rule, not only upon the general grounds mentioned
in his written opinion in the case of the BeUey^ Furlong, which
I have elsewhere fully considered, but upon grounds peculiar
to cases arising under the provision order of 1796. [Mr. Pink-
ney here argues at length that this order was not warranted by
the law of nations, and therefore att'orded no ground for a limi-
tation of the rule of compensation applied in the case of the
Betsey, His opinion on this subject is printed in this Digest,
under the head of Contraband.]
'* There is one topic which the eighteenth article of the treaty
has produced at the board • ♦ * upon which I shall, of
course bestow some slight consideration.
"That article says that the owners of the cargoes becoming
contraband by the laws of nations aiul for that reason seized,
shall be speedily and completely indemnified.
MEASUBE OF DAMAGES. 4225
^< It is argaed that as the article goes on to express the
understanding of the contracting parties as to tlie import of
the terms, completely indemnifiedj by prescribing a rule for the
attainment of complete indemnification, we have here a pre-
cise commentary upon the words ^ full and complete compensa-
tion' used in the sixth article of the treaty.
'^ The rule is the value of the cargoes and a reasonable mer-
cantile profit with freight, etc.
^^ I shall not trouble myself to enquire into the exact scope
of this rule, nor shall I occupy myself with an enquiry whether
the words indemnification aud compensation are so far synony-
mous as that we should be justified in taking the sense of the
contracting parties ux)on the import of the former as conclu-
sive evidence of the import of the latter. For surely a rule
which should completely indemnify or compensate the owner
of goods become contraband and for that reason rightfully
taken from him by the laws of nations, might still be wholly
inadequate to the complete compensation of the owners of a
cargo wrongfully captured or condemned.
^^The term complete indemnification or compensation de-
pends for its scope and for the rule which shall attain it, upon
the nature of the case to be redressed. We are required by
the Ylth article in all case tx) grant ^ complete compensation'
where we grant anything. But do we apply the same rule in
every casef Or do we not rather understand by complete
compensation that retribution which is commensurate with the
injury received t
<< In short, it can never be satisfactory to abstract the words
^complete indemnification' in the eighteenth article from the
subject to which they are applied, and then reasoning upon their
abstract meaning to draw an inference from them that shall
affect an entirely different subject. There is not a member of
this board who has heretofore acted upon this idea; we have
all agreed that in granting ^complete compensation' we are
not always obliged to give freight or demurrage. But the
rule in the eighteenth article gives freight and demurrage uni-
versiilly, and if that rule is proper for our government at all we
must adopt it uniformly, for we are compelled to grant complete
compensation in every instance in which it is proper for us to
relieve. This absurdity would follow, that we should apply
the same measure of redress to cases wholly different in prin-
ciple, and, instead ot suiting the compensation to the injury
4226 INTERNATIONAL ARBITBATIONS.
under all its circumstances, should treat alike a claimant whose
case was liable to no exception, and one whose case was attended
with such facts as not only to warrant the original capture for
the puri)ose of judicial investigation but to destroy the equi^
able claim to freight and all title to demurrage."
Pinkuey, commissioner, Jane 25, 1797, case of the Xeptune, Article YIL
treaty between the United States and Great Britain of November 19, 1794.
The American brig WiUiam^ John Hughes
^*^illiam^ master, sailed from New Orleans June 11,
1829, for Vera Cruz, where she arrived on the
28th of that month. Having discharged her cargo, she was
detiiined by successive embargoes until the 3d of the following
August, when she was impressed into the service of the Mexi-
can Government and employed in the transportation of troops
and mimitions of war from Vera Cruz to Jacnlata. On a
claim of the owner of the brig for damages the American
commissioners allowed comi)ensation (1) for the retention and
enforced service of the brig, (2) for ship's stores consumed by
the troops on the voyage, (3) for certain costs attending the
presentation of the claim, and (4) for the loss of a cargo of
passengers, which it was alleged that the brig when seized was
on the point of transporting from Vera Cruz to Havana, in
Cuba.
JMarch 10, 1841, the umpire rendered the following " prepara-
tory decision:''
" Before deciding the claim of Bobinson Potter, it is neces-
sary to inipiire, iis the undersigned has indicated in his pre-
parutory jiulgineiit of the 23rd of February in the case of Mr,
Baldwin, whether, according to the principles of Mexican law,
the injured individual has the right to demand indemnity for
the loss of the profit of which he has been deprived. It is also
necessary to know what are the facts on which the witnesses,
John Hughes and John Cross, found their opinion that the
seizure of the biig Willuan deprived her of a complete cargo
of passengers, and by what calculation the witnesses arrived
at the result of a profit which would have amounted to $4,000.
It is necessary to ascertain whether the brig William could
count with safety on the passengers, or whether there was
room for conjecture."
July 31, 1841, the umpire rendered the following final award:
^^The nuxed commission appointed to adjust the claims of
citizens of the United States against the republic of Mexico
has not agreed on the claim of Kobinson Potter. The Ameri-
can commissioners allow to the claimant the sum of $4,532,
MEASURE OF DAMAGES. 4227
with iuterest at 5 per cent from the lat of September 1829, as
iudemiiity for the detention of the brig William by the Mexi-
can authorities, for lier enforced employment in the service of
Mexico, and for certain damages that resulted, as well as $4.25
without interest for expenses of translation; they say in that
regard in a report made to the undersigned of the 14th of July
1841: 'The proposition we maintain is not specifically for the
sum of $4,000, as the passage money which would have been
received, if the brig had not been impressed, but a fair and
reasonable compensation for the vessel, while she was illegally
embargoed and forcibly employed in the public service of
Mexico;' and further on: 'Thereisalso indubitable proof of
damages to the ship and of consumption of provisions to the
amount of $r>.*>2, which, added to the above sums, makes the
total amount of the claim in this case, exclusive of interest,
$4,5.32.'
'*The Mexican commissioners, on the other hand, contest the
right of the claimant to demand an indemnity for that which
would have been earned by a cargo of psissengers, if the seiz-
ure of the brig had not taken place, and deny besides that it is
sufficiently proved. They are willing to allow him only $1,250
for the transportation of the troops and $200 for the damages
caused by the soldiers, with interest at 5 per cent from August
11, 1829, on those two sums.
'^ The mixed commission having had recourse to the umpire
for the decision in the name of His Majesty, the King of
Prussia, on the points on which tbe mixed commission can not
agree, the undersigned, after having examined and considered
the demands and defenses, decides that the government of the
Kepublic of Mexico is bound to pay to Robinson l*otter the
sum of $2,101, with interest from August 11, 1829, up to the
day of actual payment, for the detention of the brig Williatn
by the Mexican aiithorities and for the enforced employment
of the vessel in the Mexican service, iis well as $4.25 without
interest, for the expenses of translation; the undersigned
rejects the rest of the demand."'
Bobinson Potter v. Mexico: CoiiiiniHsion iindor the convention between
the Unit4^d States and Mexico of April 11, 1839.
Jethro Mitchell, in consequence of certain transactions, had
at the City of Mexico in October 1822, the sum of $5,152.17
in specie. Wishing to send it to the United States by way of
Vera Cruz, he employed two carriers for $265.17 to transport
it to that port. This left the sum of $4,887, which was handed
over to the carriers for transportation. Soon after they set out,
the money was seized by the Mexican Government without
cause and converted to its own use.
The Mexican commissioners admitted the validity of the
claim, but differed from their American colleagues on two
5627— VOL. 4 0.3
4228 INl'ERNATIONAL ARBITRATIONS.
points. The latter contended (I) that the principal of the
award should be $5,152.17, as if the claimant was to be paid in
specie at the City of Mexico, with the expenses of transportation
yet to be defrayed; and (2) that, in view of the tortious char-
acter of the seizure, damages should be allowed in the nature
of probable profits which might have been made by the use of
the money, instead of interest at the ordinary rate ex contrcictu.
The umpire, however, awarded the sum of $4,887, with
I interest at 5 per cent from October 12, 1822, tlie probable date
of the seizure, to the date of the award, and $50 costs of
translation.
Mercy Mitchellf administratrix of Jethro Mitchell , r. Mexico: Cominis-
Hion under the convention between the United States and Mexico of April
11, 1839.
" In re ships Jamen Maury ^ General Pikej MilOy
^j^J^^t^„ and the bark Nile.^
**G^eral Pike/' ''Where a yessel, captured and bonded in the Arctic
and "Milo," and Ocean, is obliged to convey to a port of refuge the
the Bark *'Nile." crews of other vessels captured and burned, a sum
is to be awarded to the owners as compensation for
property and expenses incurred. Also a sum in lieu of catch in the
enjoyment of which the ship's company shall have part, which sum
shall include compensation for provisions consumed for the enforced
use of the vessel, the compulsory service of officers and crew, and shall
embrace the consideration that the vessels were left thirty days' sail
at least from the point of departure, to which they had a right to claim
to bo returned.
"A statement of the case will be found in the opinion of the
court.
'* for the complainants.
"Creswell & Hackett for the respondent.
"Jewell, Judge, delivered the opinion of the court:
"These are all cases of whaling vessels captured near the
close of the month of June, 1865, in the Arctic Ocean, by the
Confederate cruiser Shenanchmh. None of them were destroyed,
nor does it appear that any property was taken from them by
the cruiser, but that they were severally spared from the de-
struction which befell a large number of whalers at that time,
and bonded by the cruiser, and ordered to take on boanl and
carry to San Francisco or to Honolulu the officers and crews
of the several vessels which had been burned.
^Davis's Report of the proceedings of the first Court of Commissioners
of Alabama Claims, p. 47.
MEASURE OF DAMAGES. 4229
"The James Maury was captured June 28, 1865, a prize crew
put on board of ber, the mavSter aud mate ordered on board the
Shenandoah^ where they were detained until the master had
executed a bond to the Confederate States for the assumed
vahie of his vessel, and until the cruiser had placed on board
of lier the crews pf eleven of the burned ships. Then the
master was returned to his vessel with a safe-conduct from the
commander of the cruiser, saving him from capture by any
Confederate vessel on his passage to Honolulu, to which port
he was directed to proceed and there land the men so placed
on board.
"At the same time a large number of men were placed on
board the bark NUe^ which, being fitted out for only one sea-
son, had not sufficient provisions for the increased number of
persons, and a portion of the provisions from the Maury was
transferred to the Nile for use on her passage to Honolulu with
the men so placed on board. The value of these x)rovisions is
shown to have been $1,205.90.
"The James Maury j with 150 men on board, was restored to
her master — if that can be called restoration — June 30, 1865,
and, according to the orders of the commander of the cruiser,
the master made sail for Honolulu, where he arrived in safety
on the 11th day of August, after a passage of forty-two days —
or in forty-four days after his capture.
"At the time of the capture of the Maury she was actively
engaged in the whale fishery, and had already taken some
whales, and had all her supplies aud materials on board for
that purpose. On receiving this large number of men, who
were in such excess over his own crew, the master was obliged
to make such provision for their shelter and comfort as he
could, or as humanity or their demands required. At that
season, in that climate, it was necessary to furnish them a
sleeping place between decks, and all the whaling apparatus,
and extra rigging, and other similar articles found in the way
between decks were thrown overboard ; the lumber found there
used for the fitting up of berths for the men, the spare sails
and duck cut up for bedding, and generally such use made of
everything on board as the necessities of the men required.
Much propertj' was lost, destroyed, or appropriated to the use
of the men, with or without the consent of the master of the
Maury^ whose consent to the use of any article found on board
which might subserve the comfort of his enforced p.issengers
4230 INTERNATIONAL ARBITRATIONS.
would not, probably, huve been asked. In fact all on boanl
had be(Mi prisoners, and whatever was spareil, whether ship or
Htores, was spared for the common use of all so far as was
needful to the safe arrival at Honolulu. Some question was
made by the counsel for the government whether the destruc
tion «)f property on the i)assage was not consented to by the
master of the MnHry^ and so its value could not be claimed
here; but we must consider it is one of the necessary — in fact^
an inevitable— result of the condition of things. Indeed noth-
ing is more creditable to the character of the officers and men
in all these vessels than the fact that there has not been shown
in any case the least wanton destruction of proi>erty, or the
least insubordination on the part of any man at any time. In
every ca^e the men placed on board were at least five times the
number of the otticers and crew of the ship on which they were
placed, and at any time they could, if they pleased, have taken
the vessel under their control. The Maury arrived at Hono-
lulu August 11, was immediately refitted, and in the very short
period of seventeen days was again at sea in pursuit of her
calling. But at this late date — August 28 — she could not \\o\\q
to reach the Arctic Ocean, from which she came, until so late
a period that the season, which closed about October 1 or a
little later, would be p«ast. She therefore sailed for the winter
cruising ground.
"The lacts in regard to the other vessels are substantially
the sani(\ except that they were ordered to San Francisco.
'*The (ieiural Vikc had 222 men placed on board of her, so
that with her own crew she had for a time on board 252 men.
Of these, urged by considerations of humanity alone. Captain
Weeks, of the bark Richmond, took 52, and carried them to
the Sandwich Islands, thereby incurring for himself and owners
a loss from the abandonment of his season's employment for
which this court has already expressed a regret that it could,
under the rircunistances, make no compensation.
"She arrived in San Francisco August 1, after a voyage of
about thirty-two days. Here, all the crew, being advised by
counsel that tliey could not be longer held, left the ship, as did
all the oflicers, and she remained m San Francisco till her
owners sent out a master to take charge of her and ship a
new crew. But if the same dispatch had been used in this
case as in the case of the Maurii at Honolulu, or of the MilOj
which went to San Francisco, the time of sailing would have
been too late to proceed again to the Arctic Ocean.
MEASURE OF DAMAGES. 4231
"lu tbis case, us in the case of the Maury, there was a con-
siderable destruction of property by throwing it overboard
and in fitting up bunks for the men.
"The Milo was captured June 22 aiid bonded, as in the case
of the Mauryj and 100 men of the crews of the whalers pre-
viously captured put on board of her, making, with her own
officers and crew, 194 men on board. The master informed
the captiiin of the cruiser that he had not sufficient provisions
to make the voyage to San Francisco with so many men in
safety, and he was directed to take, and did take, a quantity
of provisions from a vessel just captured, and not yet burned.
'*IIe sailed for San Francisco June 23, where he arrived
July 20, in safety.
"Tlie narrative of the fticts of the capture of the Milo, given
by the master, Capt. Jonathan 0. Hawes, is as follows:
'^ ' 18th int. Please now describe the circumstances of your
capture.
'•'Ans. About 11 o'clock on the 22d of June 1865 1 saw a
steamer approaching; 1 was boiling at the time. Supposing
her to be a Russian telegraph vessel, with later news from
San Francisco, I set my colors, and awaited his approach,
hoping to get further news in regard to the assassination of
Mr. Lincoln, whose death I had heard of the night before.
He hailed my ship and ordered me on board. I asked him
what ship it was. He said, "Never mind what ship it is; come
on board and bring your paj>ers, and bear a hand about it.''
1 went on board; was met at the gangway by an officer in
uniform, who ordered me to the captain's cabin. I was then
told by the captain that 1 was on board the Confederate
steamer Shenandoah, and that I and my vessel were prisoners.
He put me under oath to state the value of the vessel. The
value of the vessel and the oil on board was finally fixed at
$40,000, in gold. He told me 1 must take 100 men that he had
on board, and that if 1 would, and sign a bond, he would
release my ship; otherwise he would burn her. I asked him
what 1 should do with 100 men; he said he did not care what
I did with the men, but would give an order and ]>ermit to
take them to San Francisco. In order to save my vessel 1
then signed the bond, and he ordered me to get the 100 men
out (luick. 1 found that he had on board the officers and crews
of the Euphrates, Abigail, and Wm. Thompson j all of New
Bedford, which ships he had already captured and burned.
1 then went on board my ship and ordered my crew to go on
board of him for the hundred men, and he proceeded to cap-
ture the Sophia Thornton, of New Bedford, which ship was
about one-fourth mile off; after putting a prize crew on board
of her, he ordered me to lay alongside of the Sophia Thornton, ^
under the penalty of lieing blown out of water, while he ^
4232 INTERNATIONAL ARBITRATIONS.
went in pursuit of another ship, the Jireh Stci/ff of New Bed-
fonl, wliicli he captured and set on fire; he then came aloii^-
ide of my ship, called nie ou board, told me he liad two more
ship's crews tliat he was going to put on board, to which I
protested on the grounds of humanity, and I also said I had
not provisions enough, lie told me that he was f^oiug to put
the other two crews on board, and tliat I must take what pro-
visions I deemed necessary to get the men to San Francisco
out of the Sophia Thornton^ and that he would lay alongside
of me until 1 did. He brougtit his guns to bear on me, and 1
went to work getting provisions out of the Sophia Thornton.
While taking provisions, he went and captared and set on
fire the Susan and Abigail^ of San Francisco. Supposing he
was coming to put another crew ou board, we set sail and left,
thinking it the most prudent to do so, when he sailed to the
northeast, and I headed for San Francisco. This was the last
1 saw of him.
" *ll)th int. What flag was the Shenandoah flyingf
" * Ans. The Russian Hag.
" '20th int. What happened after you last saw the Shenan-
doah f
'* ' Ans. I gave orders to clear the ship for the reception of
the mcMi 1 had been compelled to take on board. We ha<l 194
uMMi, all told ; VI of these left at night to inform the fleet north
of us of the presence of the Shenandoah The first thing to do
was to get a ]»lace for them to sleep. This we did by heaving
overboard cask, ."iOO bbls., 30 bbls. of blubber, wood, etc., and
everything that was in tlie way, for that purpose. We used
our bnnber, nails, spikes, and canvavS, and some sails; one suit
of sails to make berths for the men, and then they could not
all sleep at one time*. We made our way to San Francisco as
best we rould, and arrived there in 28 days, without much
sickness.
'* *iilst int. Under whose command was the ship on the voy-
age to San Francisco?
*' * Ans. ^^)niinally mine; but of course I had no liberty to
go anywhere else.
'* '1*lM int. What was the contents of the permit you received
from the captain of the Shenandoah f
'* ' Ans. The MUo was bonded and was ordered to San Fran-
cisco by Captain Waddell, and was not liable to seizure from
Confederate cruisers while on that course.
*' '2;i(l int. Have you that permit now, or a copy of it!
'* ' Ans. I have not.
<^ 'iMth int. On yourarrival at San Francisco, what hap]>ened!
" ' Ans. My ctrew left, and most of my officers and my pas-
sengers, immediately.
" '2r>th int. In what state was the MUo left!
"'Ans. In very bad C(mdition, except as to seaworthiness.
The provisions were i)retty well eaten up. The ship was well
cleaned out every way and very dirty. The slops, tobacco,
and all small stores were all cleaned out.
kiSAStJRE OF DAMAGES. 4233
'* *2Gtb int. What did you next do!
^^^Ans. I entered a protest first; and then, as I could get
no telegraph home, I had to determine for myself what I would
do. 1 concluded to refit, and I raised money on the oil and by
drafts on the owner, and refitted for a cruise of six or seven
months down to the islands. I shipped a new crew and offi-
cers, with a few exceptions. I tried to retain my old crew,
but I found I could not do so, as they claimed the voyage was
broken up.
'^ '27th int. Why did you not return to the whaling grounds
in the Arctic f
'^ ^ Ans. I deemed it too late to get back for a season there,
so I cruised along the coast and down to the islands.
'' *28tli int. When did you get away from San Francisco!
" ' Ans. Near the middle of August 18G5.
^<<29th int. When does the season in the Arctic usually
terminate?
*' * Ans. The Ist of October.
" '35th int. If you bad not been captured in the Arctic, what
voyage would you have made in the usual course of whaling
down to the Ist of April 1866!
"'(Objected to.)
" ' Ans. I should have stayetl in the Arctic till October 1, and
then gone to the Sandwich Islands or San Francisco to refit.
If I hiul gone to San Francisco I should have cruised down
the coast after refitting and reached the Sandwich Islands
about April 1, 1866, as I did. If I bad gone from the Arctic to
the Sandwich Islands, I should have refitted, then gone over
on the coast between sciisons, and then back to the Sandwich
Islands, arriving April I, 1866. The between-season whaling
ground was the same, except that I had about six weeks more
on the coast than I should have had if my season north had
not been broken up.'
"The spoliation papers and the safe-conduct given by the
commander of the cruiser is shown in the case of the General
Pike.
" 'Deposition of Hebron M. Crowell. Copy of permit pro-
duced by Hebron M. Crowell in answer to the 12tb direct
interrogatory.
'"Thomas J. Cobb, Commissioner.
"*This is to certify that register of the bark General Pike
was this day retained by the C. S. steamer Shenandoah^ said
bark General Pike having been released under a ransom bond
of forty- five thousand dollars.
'"J. I. Waddell,
"'/vf. Comdg.^ C. S. N.j C. S. Steamer Shenandoah.
'"June 26, 18(55.
4234 INTERNATIONAL ARBITRATIONft.
" * This ift to pn)tect Master Crowell, of tbe bark General Pikt,
from capture on his way t^ 8aii Francisco, Cal.
"M. I. Waddell,,
'^'LicMtenant Commandin^^ C. 8, N,
<''L>Gtii June, 18(kV
^^Tlie Xite was captured June 28 and bonded in a similar
manner. No one of her officers or crew was found to be exam-
ined, but tlie testimony of one of the masters who was put on
l>oard of her shows that lier case was substantially like the
others.
"Ilis narrative is as follows:
"*Q. 4. What do you know of the capture of the bark NilCj
of New Loudon, by the Shenandoah t
*'*A. I know she was captured the same day we were and
under the same circumstances.
"'Q. 5. What became of the Nile after her capture?
"'A. The captain was ordered aboard of the Shenandoah;
they told him they were ^oing to burn his ship, but afterward
tliey bondc^d her.
'**Q. <J. Do you know the reason why she was bonde<lf
''« A. For tlie reason there were so many of the officers and
crews of the captured vessels had been put aboard of the Jameis
Maury, which liad been captured, that we sent a master on
board the Shenandoah and asked thein to give us another ship,
as there was not sufficient room on the James Maury for us to
p) to port. The captain of the Shenandoah then bonded the
S'Ue, and a lot of us went on board of her.
*''<»>. 7. Wliat nuniber of men went on board the I^ilef
''* A. iMy memory is that tliere was about 170, all told.
"*(^. S. What became of the Nile and her crew and pas-
sen jrers*
»' ' A. We made the best of our way to San Francis(». There
was nothiiifj else for us to do; we had to go either to there or
to the Sandwich IsUinds.
**'Q. 0. Who had connnand of the vessel?
'*^ A. Asa W. I'ish, the captain of the NUe^ but he had to go
to port. Tliere was nothing else i)OS8ible for him to do under
the circumstances with all these men cm board. We could not
have taken a whale and got in the oil if we had had one
alongside, there were so many persons on board. It wsis a
matter of necessity for us to get to port as soon as possible.
"'Q. 10. What hap])ene<l on the voyage to San Francisco!
'** A. Nothing particular, except that we made sail there as
fast as we could.
''•(^. 11. On what did the officers and men live on their way
down to San Francisco f
'' * A. We lived on the stores of the Xihy whatever they had.
"<Q. 12. Where did you sleep?
MEASURE OF DAMAGES. 4235
" ' A. Between decks and everywhere all over the ship, wher-
ever they coiiid f^et a chance to lie down.
"K^. 13. How long were you in the vessel going down to San
Francisco?
*** A. 1 don't recollect exactly, but I think it was about five
weeks.
"<Q. 14. What, if any, damage do you remember was done
to the ship Xile, her stores, and outfits f
•''A. I don't remember whether we threw anything over-
board or not. We must have done considerable damage; we
made room for ourselves, and made beds of sails or anything
we could get. Many things might have been thrown overboard
while 1 waa below.'
"The .Yi/e brought 121 captured officers and men, and arrived
at San Francisco after a passage of thirty-five days. Her
master. Captain Fish, left her in charge of the mate and came
home overland, and rejoined her in the spring of 18G6 in Hono-
lulu. The vessel was taken in ballast by the mate to Honolulu,
where she was refitted, and made a winter cruise in the winter
of 18(i5-(;0.
"Such are the general oulines of these cases.
"Certain items of loss are the same in kind in all, dififering
in amount. These are the proi)erty on board which was de-
stroyed or consumed on the passage and the expenses neces-
sarily incurred by reason of going into port in San Francisco
and Honolulu, respectively.
"These items in the case of the Jamett Maury are as follows:
" Provisions taken from her to the Nile, in value $1, 205. 90
" Property thrown overboard or destroyed, in value 2, 597. 28
" ProviMioiis consumed on passage, in valae 4, 681. 95
*' Provisions destroyed or wasted 762. 50
9, 247. 63
'' Expenses incurred or made necessary by the compulsory voy-
age (in Honolulu) 1,076.22
''The owners also clainu'd for tho amount of the advances made
to the crew, which wore claimed to be substantially lost, as
the crew descrU'd at Honolulu, amounting to 1, 581. (58
"Also, for new advances made at Hcmolulu, where a new crew
wjw Hhipped, in all 413.80
*'They also proved that in shipping a new crew they were
obliged to give them a larger lay than had been given to the
old crew, the expense of which increase they estimated at the
sum of 3,500.00
5, 495. 48
4236 INTERNATIONAL ARBITRATlO«8.
'^Tliese items of claim are here stated as being matters of
damage, in which tlie crew of the vessel had no interest. The
loss of them, if any, fell upon the owners alone.
''The other element of damage for which claim is made is
one in which the crew as such (the whole e(2'tttp«//«, as the ship's
company is called in the French law, including officers and
men) have a part.
''The shipping articles of a whaling vessel bind the ship to
the men as much as the men to the ship. The men do not
have wages; their compensation is given them in their /ay, or
aliijaot part of the catch, and the owners cannot lawfully
divert the vessel from the stipulated business. So, if the
vessel is diverted from her ordinary business to engage in a
salvage service, the whole ship's company have an equitable
proportional claim upon or interest in the amount received or
awarded as compensation.
"In like manner, if the vessel is taken forcible possession
of, and compelled to perform a service entirely different from
that in which she is engaged, as in these cases, and especially
when the whole ship's crew must share in the labor and i>eril
thereby imposed, they must have an interest in the compensa-
tion awarde<l for such service and duty. The amount so
received must be put iu the i)lace of the fund out of which
their lay would have been drawn, as they receive no wages as
such.
"The principal question in all these cases is, what compen-
sation shall be allowed to the owners and crews for this enforced
employment of their vessels, respectively, and for this com-
pulsory labor and peril of the men.
"The claimants ask for it under the name of demurrage.
"Demurrage, iu its strict use, is the term employed in con-
tracts of attVeightment, to lix the sum to be paid for detaining
a vessel in i)ort beyond the stipulated laydays.
"It is, however, employed in a less literal sense iu admiralty
courts to designate the damages to be paid for the loss of and
use of a vessel by the owner in a case of unlawful capture or
destruction, when the circumstances are such as to lead the
court to award costs and damages against the captor.
"In these cases, damages are assessed at so much per day
for the detention or delay.
"The term denuirrage was used to designate this kind of
loss or damage in some of the papers laid before the Greneva
tribunal.
l^ASURE OF DAMAGES. 4237
" We do not, however, arrive at the result we reach by fixing
the value of tlie daily employment of these vessels.
*^It was a<lmitted by the counsel for the government that
this enforced erai)loyment of these vessels and their crews was
a subject of direct loss or damage, but it was claimed that the
amount to be awarded was not to be made in any way dei)end-
ent upon, or to be measured by, the value of the service in
which they were engaged; that the fact of their being in the
Arctic Ocean, upon the whaling-ground, engaged in what was
generally a most lucrative employment, the fact that they
thereby lost an entire season^s business, should not be taken
into the account in fixing the amount of this direct damage or
loss.
"Evidence was offered tending to show that a fair price for
the passage of men from the Aleutian Islands to San Fran-
cisco was about 985 per man, and it was claimed that this
would be a fair compensation for the damage caused by tbis
enforced service.
"With this view we can not agree.
" We had occasion to consider this question in the case of
the Baron de Castine.
"That was a small vessel, worth from $5,800 to $8,000,
engaged in the trade beeween Maine and Cardenas and New
York. On the voyage in question she was under charter to
(jarry a cargo of lumber from Maine to Cardenas, Jind bring
thence to New York a cargo of sugar, for the round sum of
$2,2.50, with demurrage at $35 i)er day.
"When she had msido about one-third her voyage to Car-
denas she was captured and bonded, and forty-four men put
aboard of her; and she was ordered to land the men not south
of New York. She did go into Boston after about a five days'
voyage, where she staid about seventeen days to get some
repairs, when she sailed again to fulfill her charter, iler mas-
ter thought she arrived at or near the ]K)int where she was
cai)tured within thirty days from the day of capture.
"The demurrage fixed in her charter for thirty days' deten-
tion would amount to $1,050, and we were urged by the counsel
for the government to award no more than that sum.
"But this demurrage was the compensation fixed between
the parties for delay in port. This vessel had been forcibly
turned from her course in mid ocean. She had been comi)elled
to perform an entirely diflerent voyage, t^^ encounter entirely
new i>erils, and the court did not think the value of this com-
i
4238 INTERNATIONAL ARBITRATIONS.
pulsory Hervice stioald be measured by the demarrage fixed in
the charter, and awarded as damages the sum of $2,000.
<^ What are ttie general facts in regard to this branch of the
claim 1
"These vessels were all fitted out in New Bedford or New
Tjoiidon at a large expense, and then sent to the Pacific Ocean,
to cruise for whales in the Arctic Ocean daring the summer,
* from the Istof June to the 1st of October, and to return to
Honolulu between si^asons to refit and ship home oil, and then
make a cruise in the winter season on the western coast of
North America.
"During the last days of June, while engaged in their busi-
ness, nearly all having already taken one or more whales, and
one wiiile engaged in cutting in a whale, they were captured.
All tl)e captured vessels, except the four in question, were
burned, and in nearly every case of such destruction we have
found ({uite a large quantity of oil and bone on board, the
result of their labor up to the time of capture. While engaged
in this very lucrative employment these vessels were captured
and compelled to abandon their employment, and go to a port
nearly three thousand miles away, and so distant that, using
all required diligence, they could not return to the Arctic
Ocean till the season was just closing or already closed.
'^ What shall be held to be the rule of damage in these cases?
What shall bo given as compensation for this service and loss?
That it was a direct damage — a loss directly incurred — is not
and can not be deni«'d.
"Here the ]>ropcrty was taken from the possession of the
owners, was forced into a service not contemplated by them,
exposing their large- ventures to new and unknown risks, and
forcibly depriving them of its use in an employment for which
it had been specially and at great expense prepared, and siir
rendered to the owners again at a point thirty or forty days'
sail from the ])oint of capture.
^'In the schooner Livch/ (1 Gallison, 315), damage in the
nature of demurra^^e was allowed against the captors who had
made an unlawful seizure.
'' Story, J., says : ' 1 shall allow demurrage, including therein
wages and expenses of the ship, from the time of capture until
she could return to the place of capture,'*
''The English admiralty reports are full of cases in which
vessels have been unlawfully captured or unlawfully detained
MEASURE OF DAMAGES. 4230
after eaptnre, and uiuler circumstances which led the courts
not only to discharge the vessels, but to award the owners
costs and damages for such unlawful detention. In all these
cases the measure of damages had regard to the character and
employment of the ship and had been measured by the time
ol the detention.
" In the Corrier Maritimo (1 C. Rob. -87), damages in the
nature of demurrage were allowed for a period longer than
the time of detention, and must have included a period enabl-
ing the vessel to return to the i)lace of capture, as was allowed
in the case of the schooner JAvely.
" In cases of collision, the courts of England always (see
the OazellCy 2 W. Rob. 279), and the courts of this country
since the case of Williamson v. Barrett (13 How. 101), have
allowed damages in the nature of demurrage, and generally
under the name of demurrage, as compensation for the loss of
the use of a vessel during the period of necessary repairs.
"The courts have always held to a cijnsiderable strictness
of proof in such cases that but for the injury the vessel would
have had employment, and as to the value of such employment.
** We do not, however, consider these claims as within the
doctrine of either of these two classes of cases.
" In them, damages were given for a detention during a
period of entire inactivity.
'* These vessels were not inactive; on the contrary, they were
in the highest degree employed, forcibly taken from their ordi-
nary avocations, one of them while in the act of cutting in a
whale, and compelled to engage in a duty and to perform a
service which, when performed, would leave them thirty or
forty days' sail from the place whence they had departed.
" What shall be the sum awarded for this service, for com-
pulsory service is a damage or loss as direct as the loss of
property!
'' It has been strenuously urged by the counsel of the United
Stiites that the fact that these vessels were engaged in a
lucrative business should not, under the terms of the act
giving us jurisdiction of these claims, be taken into considera-
tion; that an inquiry into the employment of the vessels
necessarily involved a consideration of prospective gains or
profits, which we are forbidd(Mi to allow. But we are to give
some damages, some compensation, for service rendered. In
any case we must consider the character, situation, and employ-
4240 INTERNATIONAL ARBITRATIONS.
moiit of the vcMsel. The element of value and employment
can not but enter into ttie calculation as readily as t)ie question
of time. What would be ample compeusation to one vessel
would be entirely inadequate to another.
'•What was intended by prosj)ective catch, prosi>ective
piins and protits, as connecteil with this class of cases, is
somewhat shown by the character of the claims filed before
the (leneva tribunal as well as before this court. In all the
cases of whalers destroyed the owners claimed not only the
value of their vessels and outfits but for the season's catch
which was lost. So vessels driven from the fishing g^unds
by the presence of the cruisers presented claims for catch
lost, or for prospective protits, gains, and advantages.
** Acting u\H)u the view of the counsel for the United States,
the experts called by the government have estimated the
value of the service rendered by showing what is a fair and
usual comi)ensation paid for transporting passengers from the
Aleutian Islands to San Francisco; and the counsel for the
government claims that a fixed sum per man transported
shonhl be awarded, using the price of passage above referred
to as a basis of computation.
"• But with the exception of the consumption of provisions,
the injury to the claimants caused by this enforced service in
no way depended upon the numl)er of men carried. One hun-
«lred men, as niucli as two hundred, took the vessel from its
employment; indeed, ti t't^; two taken by Captain Weeks in
the Richmontl cost him his entire summer's employment as
much and as truly as one hundred and liftyone on the James
Maury,
''We think a sum should be awarded in each case to the
owners as such simply, which sum will compensate them for
the proi)crty destroyed and expenses incurred, the elements
for lixing which we have already indicated in the case of the
James Maury,
** We think there should also be awarded to the owners,
jointly, a sum to be received by them in lieu of catch, and in
the enjoyment of which the shij>'s ccmipany shall have part, in
the same manner as if the sum was the proceeds of oil and
bone, which sum shall include compensation for the provisions
consumed by the crew of the vessel in making the voyage, and
for the c'lirorccd use of the vessi'l during the voyage, and the
compulsory scrvico of the olliccrs and crew, and shall also em-
brace the consideration that the vessels were left at a point
MEASURE OF DAMAGES. 4241
thirty days' sail, at least, from their point of departure, to
which point they had a right to chiini to be returned, or to
receive compensation for the failure so to be.
"Acting upon the principles and governed by the considera-
tions before stated, we shrill enter judgments in these several
cases.
''In the case of the James Maury, we award to the owners
alone,ibr the loss and destruction of their property, the sum of
$10,324.25, which sum will be divided among them according
to their resi)ective intere^sts in the vessel and outfits, the court
having deducted the amounts severally received by the sev-
eral parties from insurance in entering the judgments in their
favor.
"And we award to all the owners, jointly, as compensation
for the damage for the use of the vessel and for the compul-
sory service of the officers and crew, the sum of $16,925, which
sum is to be received by the owners, and the same, with in-
terest thereon at four percent per annum from the date of
capture, is to be held by them as and for and in lieu of
catch of said vessel, and such sum, with such interest, is to be
distributed among the said owners and the officers and crew
of said vessel in their due proportions, and in accordance with
their several and respective interests in the catch of said
vessel.
In the case of the General Pike, we award to the owners
alone, for the loss and destruction of their property, and to be
divided among them according to their respective interests in
the vessel and outfits, the sum of $8,921.06.
"And to the owners jointly, for the use of the vessel and the
compulsory service of the officers and crew, to be received by
the owners in lieu of catch, the sum of $18,730.
"In the case of the Milo, we award to the owners alone the
sum of $0,157.84, and to the owners jointly, for the use of the
vessel and the compulsory service of the officers and crew, to
be received by the owners in lieu of catch, the sum of $16,585.
"In the case of the Nile, we award to the owners alone the
sum of $8,250.65, and to the owners jointly, for the use of the
vessel and the compulsory service of the officers and crew, to
be received by the owners in lieu of catch, the sum of $14,375.
"There were several claims presented at th<» same time
whcMi these cases were heard, made by (»fficers or nuMi of tli«»se ^^
vr>«srls, asking for compensation for loss of catch or of wages ^^^
after capture. '
4242 INTERNATIONAL ARBITRATIONS.
'<A11 these claims are embraced within the e<inity of the
judgment to be made in these cases, and each of these men
will receive outof the judgments herein made, in lieu of catch,
all the compensation which we believe under the law we c^m
award them. As to loss of wages after the arrival of the
vessels at Honolulu or San Francisco, it need only be said
that they voluntarily abandoned the enterprise, choosing to
consider the voyage ended, when they might have, if they had
so chosen, remained by these ships and continued their r>
spective voyages. These claims will therefore be dismissed.^
n #*v uxKT- ^ "Henry W. Hubbell .
^'^^T"* r. ^ No. 278.1
^^'' The United States.
"Chas. a. Sherman et al.
r. ^ No. 279.
The United States.
"Bdw'd H. Gillilan
V. 5> No. 1131.
The United States.
"The measure of (laniAi^c for ijoods destroyed by tho Confederate cruisers
is the value of the gooils at the phice and time of shipment, with
charges, and marine insiiraiiee aetaally paid, with interest on the
a<jgregat^» so produced from the time of shipment till the date of
destruction, at six ])er cent.
"The measure of damji«;e for loss of freight in cases when freight has
begun to be earned is tin* net freight, which is to be found by de<luct-
iug froiu the gross freight the expeuses of completing the voyage, and
of discharging the cargo at the port of destination, including all
inward port charges and disbursements, with a further deduction of a
proper sum for tln^ depreciation of the vessel while performing the
remainder of lier voyage, and of interest on the valuation of the ves-
sel from the date of her destruction to the time of her probable arrival
if the voyage hid not been interrupted.
"In fixing the value of goods ])urchased with coin or currency other than
the legal-tender curn*ncy of the United States, the value of coin in
currency at the date of purchase will be taken, when payment was
actually made in coin at that time; where payment was actually ko
made at a Bubsetjuent time, the value of coin at that time will be
taken, if the ])ayment was made according to the usual course of trade.
If not madi^ ac(?ording to the usual course of trade, the value of coin
will bo comiMited at the lowest rate, whether at the time of purchase
or at the time when ])Jiyment would have Ix'cn made in the usual
conrsi* of luisinciss, or wlurn tlie payment was actually made.
'Davis's Keport of the j)roceediuns of the first Court of Commissioners
. of J/a^ama CUvuus, p. ^'tX.
MEASURE OF DAMAGES. 4243
"STATEMENT OP THE CASE.
'< Henry W. Hiibbell and Kobert L. Taylor were the owners
of seven twenty-fourths each of the ship Winged Kncer^ her
outfits and freight — and ea^h owned one undivided half part
of the cargo. Edward H. Gillihin owned seven twenty-fourths
of the vessel, outfits, and freight.
"In October 1867 Taylor failed in business and made a
general assignment for the benefit of creditors to the claimants,
Sherman v^ Irvin, and one John K. Gardner, since deceased.
"The Winged Racer, on the 8th October 1863, sailed from
Manila for New York, and on the 16th November she, with her
cargo, was destroyed by the Alabama,, near the coast of Suma-
tra, in the Java Sea. The value of the vessel was claimed at
$00,000. Her cargo consisted of 5,810 bales of .Manila hemp,
9,007 bags of Manila sugars, 100 bales Manila hide-cuttings, 100
boxes China camphor. Its value was claimed. Indemnity was
also claimed for loss of freight, stores, outfits, port dues, etc.
"Mr. Wm. Peet for the complainants Hubbell and Gillilau:
"1. Under the act this question is to be determined —
"rt. According to the principles of law.
" b. \\y the provisions of the act.
" c. By the merits of each case.
"2. The principles of law ai)plicable to the question are —
" a. Damages are more liberally awarded in cases ^ ex delicto^
than in those ^ex contractu.^ (Sedgwick on Dam. j)p. 79,563,
n. (1); Addison on Torts (3 ed.), 984; Shearman and E. on Neg-
ligence, sec. 894; Sharper t?. Brice, 2 W. B1.942; Heard v. Hol-
man,19C.B. N.S.I.)
"ft. Future profits ai-e often expressly allowed, and if the
amount of the damage sustained can not be accurately deter-
mined, the wrong-doer must bear the burden of such difiiculty,
and in cases of doubt pay enough to insure full compensation.
(Shearman and K. on Neg. sec. 395; Leeds v. Amherst, 20 Bea.
239; Williamson v. Barrett, 13 How. 101; the Rhode Island^
2 Blatch. 113; the Xarragansett, Olcott, 388; the Lakej 2 Wall,
jr. p. 52.)
^' c. Profits directly resulting from a wrong are often awarded
as an element of damage when not remote, and not dependent
u[)on some future event so as to be uncertain or contingent.
(Shearman and lied, on Neg. sec. 599; Walker r. Post, 0 Duer,
303-373; Griffin v. Oolver, 10 N. Y. 489; St. John v. N. Y., 0
Duer, 315; Lacour v. N. Y., 3 Duer, 406; Sewall's Ev)A\ X^Tv^i.^^
5627— VOL. 4 64
4244 INTERNATIONAL ARBITRATIONS.
r. Fish, a Foster, 171 ; Sbelbyville R. Co. r. Sewark, 3 lud. 471;
New Haven, &c. r. Vanderbilt, H> Conn. 420.)
<<3. The c'hiim now uia4le in not excludecl by any pro\i8i<»ii
of tlie jM*t.'
^M. The nieaniire of damages in accordance with these priii-
cipleH —
^Wi. For the loss of the shii) is lier value at the oatset of her
voyajre. (Arnould on Insurance, 315; Stevens on Average,
IIH); Snell r. Delaware Insurance Co., 4 Dall. 430.)
^W>. For loss of freight is the amount of freight which would
have been earned but for the capture. (The Gazelle^ 2 W. Rob.
22t>; Williamson r. Harrett, 13 How. 101; the Ann CaroUnt.
2 Wall. 5;iii; Ralston r. The State HighU, Crabbe, 22; the
AV/wrrd, Blatch. iK: H.347; the AV«r J^r«ey,i)lcott, 444; Abbott
on Shippinjj, pp. <»()1, 527, quoting the Copenhagen, 1 Rob. Ad.
28; the /><r Mohr, 4 Kob. Ad. 314; the Prosper^ Edw. Ad.
72-70; the Fortuua^ Kdw. Ad. 50, 57; the Lively , 1 Gall. 315:
the Sarrnnnn^ett, 1 Hlatch. 211.)
'w*. TIh» loss of outfit is the cost of the outfit at the outset
of the voyage. If full freiglit is allowed, the measure of dam-
ages will be the value of the outtit on board at the time of
destruction. I'lider this head premiums of insurance ha<l
slnmhl be allowed as damages. (Maly r. Shattnck, 3 Cranch.
45vS.)
*'(/. lM)r loss of the car;j:o is the market value at the port ot*
destination, either on the day of destruction or on the day
when it would have arrived but for the capture. (Dusan r.
Miir^^atroyd, I Wash. C. C. 13; the Jotthua Barkery 1 Abb.
Adni. 215; the (iohl Uuntvr, 1 Blatch. iS: II. 300, 308; the
JiclH'cm.l lUatch.v^ 11.347, ,S5(); the CV>/owrZ Xrrfyrm/, Sprague,
530; Hrown r. Ashley, 1 Lowell, 27; liartlett r. Kudd, 1 Lowell,
22:5.)
*^r. If the value of the goods at tlie port of shipment (Manila)
is the measure of damage, the damages would be, pursuing the
usual course, of trade, the value in New York at maturity of a
sterling bill on London payable six months aft4»r acceptance,
and bought at Manila at the time of the purchase of the cargo
with the silver dollars by wlii<h the purcluise was luade.
**Mr. rJoseph IL Choate for the complainants C. A. Sherman
it a I,
' DiiviH's Hoport of thr nnxcediii^js of tlie lirst Alabama Claiiii8 Courts
MEASURE OF DAMAGES. 4245
<<1. The claimants are entitled to actual and complete in-
demnity; i. e.j to the amount they could have realized for their
property as it stood when destroyed^ if such destruction had
not taken place.
^^2. The measure of damages under this principle is —
'*a. For the loss of the ship, her value at the time of her
destruction.
<< h. For the loss of freight, an amount equal to the gross
freight less the estimated cost of earning that amount had the
voyage been completed.
" c. For stores, provisions, and outfit, the actual value of
what was on board at the time of capture.
"(?. For the cargo, its value at the port of destination at the
time when, in the ordinary course of navigation, it would, but
for the capture, have arrived at that port. (Abbott on Ship-
ping, 8 ed. p. 504; 3 Kent's Com. 5 ed. 242; Tudor v. Ma-
(fombe, 14 Pick. 34; Stevens & Beneck6 on Insurance, p. 208;
Sedgwick on Dam. 6 ed. p. 424; Sturgis v. Bissell, 46 N. Y.
4(>2; Sherman r. Wells, 28 Barb. 403; Spring v. Haskell, 4
Allen, 112; McGregor r. Kilgor, 6 Ohio, 352 ; Medbury r. N. Y.
& E. K. R., 26 Barb. 564; Sedgwick, pp. 3 13, 372, 409, 676, 577,
76 ct seq. chap, xiii ; Williams r. Reynolds, 22 Q. B. 221 ; Bell
t?. Cuninngham, 3 Peters, 59; Smith v. Condry, 1 How. (U. S.),
28; Heard r. Holman, 19 C. B. Rep. (N. S.), 1; Williamson v.
Barrett, 13 How. (U. S.), 101; the if. M. Caleb, 10 Blatch.
C. C. Rep. 467; the Rhode Island, 2 Blatch. C. C. 113; the
Amiable yancy, 3 Wheaton, 546; Masterton r. The Mayor of
Brooklyn, 7 Hill, 62. Papers relating to the Treaty of Wash-
ington, Vol. III. pp. 212-214.)
'*<?. If the value of the goods at the i)ort of shipment is the
measure of damages, the importer, *on the merits of the case,'
should be allowed what it actually cost him in New York, in
currency, to provide the means in the Kast Indies to purchab:e
and ])ay for the goods there, with a further allowance of the
advance in that market between the date of purchase and the
d;ite of destruction.* (The Vaughan and the Telegraph, 14
Wall. 258.)
" Mr. J. A. J. Creswell for the respondent.
'Messrs. Field, Lowe, Beaman, Tenney, Cole, and i)tlier coniiHrl filed
bri<'f8 on the qaestions involved in the«i' easels, or participated in the
argument.
I-:
4246 INTERNATIONAL ARBITRATIONS.
"The measure of damages wbicli shall be settled here will
be the measure by which we must abide in the case of like
claims brought agaiust the United States in the future. (Pa-
pers relating to the Treaty of Washington, Vol. 111. pp. 223,
224.)
"The court must be governed by the act of Congress creat-
ing it, which expressly forbids the allowance of compensation
for prosjiective damage.
"The damage occasioned by the loss of a ship is to be deter-
mined by ascertaining her market value at the time of destruc-
tion.
"The measure of damage for the cargo destroyed should be
found by reverting to the time and place of shipment, taking
the original cost and adding reasonable expenses and interest.
The rule contended for by the complainants would involve an
allowance for prospective profits.
"Claims pending before this court are in the nature of cases
arising from marine torts, where the rule adopted is to com-
pute the value of the cargo at the port of departure.
" The cases cited by counsel for claimants are cases of breach
of contract, or involve the law of common carriers, where spe-
cial considerations apply.
"Where suit is brought on an open policy, the value at the
time and port of departure has been taken as a basis for the
computation of damages. (Kent's Comm. vol. 3, pp. 3.'35, 33C;
Mayne on the Law of Damages, marginal pages 186, 188; 12
East., Usher r. Noble, p. 639; Warren v. Franklin Insurance
Company, 104 Mass. liepts. 518.)
"In cases of jettison and general average the rule is dift'er-
ent, but there nothing is contingent; the other goods have
arrived in safety and actually brought the advanced price. If,
in case of jettison, the remainder of the cargo does not arrive,
the owner of the jettisoned goods is thrown back for his com-
pensation to the value at the time and place of departure.
(3 Kent, 243; Tudor r. Macombe, 14 Pick. 34; Mutual Safety
Insurance Com])any r. The Ship Oeorge, Olcott's Reports, 157;
Gray et al. v. Wain., 2 Sergeant and Kawle, 229.)
"The same rule prevails in cases of capture as in cases aris-
ing on an open policy of insurance. (The Charming Betsey^ 2
('ranch, 126; Maley v, Shattuck, 3 Cranch, 491; the Annn
Mariay2 Wheaton, 334, 335; the Amiable Nancy ^3 Wheaton,
546; L'Amistad de lines, 5 Wheaton, 385; the Apolhn^ 9
MEASURE OP DAMAGES. 4247
Wheaton, 362; Taber et al. v. Jenny et al.^ 1 Spragne, 316; 1
liowell, 27, 223.)
^^Tlie true rale in estimating the value of the cargo is the
restitutio in integram. The actaal loss sustained by the party
at the time and place of injary is the measure of damage. The
rule in case of collision is to award as damages the value of the
goods at the time and place of departure, with expenses,
although in cases of breach of contract to deliver it may bo
otherwise. (Smith et al. v. Condry, 1 Howard, 28; the Ocean
Queen, 6 Blatch. 493; schooner Lively , 1 Oallison, 315; the
Vaughan and the Telegraphy Benedict 1, p. 49; 14 Wallace, 258;
Sedgwick, marginal p. 469, note; the Olaucus, 1 Lowell, 371.)
" No freights can be allowed by this court except those abso-
lutely earned. . (Act of 23d June 1874.)
'' The words * unearned freights ' refer to freight to be earned
after her destruction on the voyage, during the prosecution of
which the vessel was lost. Freight should be allowed pro rata
from the commencement of the voyage to the date of destruc-
tion.
^' In entering judgment the value of the goods at Manila, in
the currency of that place, should be tiiken, and this amount
converted into the currency of the United States or its equiva-
lent, taking gold at its present value.
"Jewell, J., delivered the opinion of the court:
''These claims were for the loss of the ship Winged Racer^
and for the car^o, and for the freight of the vessel, on a voyage
partly performed from Manila to New York.
"The claimants first named were each owners of seven
twenty- fourths of the vessel and freight and joint owners of
tlie cargo which they had bought in Manila and China.
"The third claimant owned seven twenty-fourths of the
vessel and freight.
" The owners of the cargo showed that the cargo could have
been sold in New York at the time of the probable arrival of
the vessel for a large profit over the cost in Manila and China.
They also contended that the goods might have been sold in
New York, to arrive, at the day of the destruction, for a large
profit.
" Before the hearing in the above-named causes it was
arranged that, in connection with the argument upon the
([uestions of law proposed to be presented by the counsel in tbe^
])rin(;ipal cases, counsel in various other cases pending befo
4248 INTERNATIONAL ARBITRATIONS.
tbe (U)art in which questions were raised as to the measare of
damages in regard to ship, outfits, provisions, carg^, orfi^eigbt,
should be heard with briefs and arguments, so that, if i>ossibIe,
all questions of this chiss should beat the same time presenteil
to the court.
*' In pursuance of this arrangement briefs were filed by sev-
eral gentlemen of the bar, and the questions have been pre-
sented to the court by briefs and oral arguments of exhaustive
ability, and the counsel of the United Stiites has with eijual
ability and exhaustive research ])re8ented his views.
"The court acknowledge their obligations to tbe various
counsel for the claimants as well as to the counsel for the
United States for the valuable assistance thus rendered.
** For the authority of this court to award any sum either as
loss or damage, or as indemnity or compensation for loss or
damage on ship, cargo, or freight, we must look to the law
under which we act.
'*The act, section 11, directs us to examine all claims admis-
sible under it, tUnrtly rvHulting from damage caused by the
so called insurgent cruisers, etc., and *to decide upon the
amount and validity of such claims iw conformity with the pro-
rittions hereinafter eontainctl^ekinl aecording to the principles of
hue and the mcritn of the several cases.'
" r>V this we understand that each claim is to be decided
upon according to the principles of law and the merits of the
several cases, and such a sum awarded to each claimant as the
principles of law and tin* merits of his case entitle him to
receive, unh'ss the allowance of such amount is S];)ecitically
forbidden by some provision of the act ' thereinafter contained.'
*' What the i>rovisi()ns of law are upon or according to which
we are to make up these claims we are not told in the act: we
are to seek them in general principles acted on by the courts,
or to be found in the decisions to which we look for the authori-
tative declaration of the law of the land.
** We ought, as it s(»enis to us, to look for these principles
especially in the decisions of the Supreme Court of the United
States, which are of paramount authority, certainly in cases
to which the United States is iu any sense a party. We may
look for them in the decisions of the circuit courts of the United
States, to the practitteand procedure in which we are specmlly
referred in the act. And we may also look to the decisions of
the courts of the several States, not as conclusive upon us, but
MEASURE OF Damages. 4^49
to worthy of exam insition by reason of the weight of reasoniDg
and broad application of principles exhibited by those very
high tribunals. And as these questions, the fund to which
they have reference, and this court itself, each and all, are but
the fruit of a great settlement between the two leading com-
mercial and maritime po^vers of the world, we may and ought
to draw from the law of nations, and the decisions of the courts
of Great Britain, and esi>ecially from those tribunals before
which questions of the law of the seas, of the rights and duties
of neutral nations, are brought and tried, such rules as will
best accord with that enlightened sense of justice by which
this nation will be willing hereafter to be measured, and to
which she will hereafter, without hesitation, appeal.
"It was not improper for the counsel of the United States,
in his very able argument, to call to our attention, and the
attention of the claimants here, that we must bear in mind
that, in making a standard according to which damages are to
be awarded to the claimants before us, we at the same time
supply a standard according to which hereafter, in all time
perhaps, damages will be claimed and enforced against our
own government.
"This consideration itself increases in our view the gravity
and importance of the questions to be decided 5 it imposes ujwn
us the greater obligation to consider with the strictest care the
matters under deliberation.
"That Congress had this consideration in view in framing the
act is evident from the act itself; and section twelve comprises
the 'provisions hereinafter contained,^ which limit and restrain
us in applying what otherwise we might apply to the fullest
extent, namely, the allowance of damages in each case accord-
ing to the principles of law.
"The primary purpose of the act we conceive to be to dis-
cover what the Iohh or dnmngc directly suffered by each claim-
ant is ac(;ording to the principles of law, and to award him that
sum, with the limited interest provided in the act; and that
amount we are to determine and award, unless we are pre-
vented from allowing the whole of said sum by the restraining
clauses before referred to.
"There are some preliminary considerations which we will
dispose of before proceeding to an examination of the chief
questions at issue.
"It is urged upon us most earnestly by all the counsel for
i
4250 INTERNATIONAL ARBITRATIONa
clainmiitH that the allowance for damage shonid be of the most
lU>eral uature, iiiaainuch as these claims arose oat of the acts
of a wroiif^doer; that the capture and destmction of th€se
vesAelH was att^'nded by wanton outrage and violence, p^e8en^
in^, iis is urprod, the cases in which courts have uniformly per-
mitted the hir^est liberality in the assessment of damage. We
do not think these considerations apply.
''These ciiptures were made in war; there was no violence
greater than is allowed by the laws of war. To be sare, usually
captured ships are not destroyed; they are commonly taken as
prize l>etbre the courts for condemnation ; but as the Confed-
eracy ha<l no prize courts, they exercised an uudoabtedi
although extreme, right, an<l burned their prizes. Every mer-
chant who made an adventure u])on the seas was fully aware
of the dangers to which his vessel or cargo was exposed. He
'met but what he looked for and should oppose.'
" Besides, this fund is the result of a liability of Great Britain
for an act of ne^li^ence. This is not a suit against the actual
wrong do(»r. To be sure, by the law of nations we held England
liable for these losses, and by the treaty she agreed to be
treated as liable, but from first to last she protested that her
liability was that which arose from oversight and omission,
from a want of vigilance, an inadequacy of exertion in par-
ticular cases, a mistake of her duties, and not a wanton or
willful act. And, as we understand it, our own government
finally accech^d to that view.
'* In our own highest court, where the owners of a privateer
were held liable for the unlawful act of the master and crew, a
claim for vindictive damages was rejected, though Mr. Justice
Story, in giving the opinion of the court, says, 'upon the facts
disclosed this must be i)ronounced a case of gross and wanton
outrage, without any Just prov(K;ation and excuse.' (The
Amiable Xafiri/, '.\ Wheat on, r»46.)
'* We are therefore of opinion that this consideration cannot
enter into our Judgment in estimating the amount of damage
in these cases.
"The various claims for damage arising under this act are:
" First. For the V(\ssel.
"Second. r\>r those outfits or supplies which are put on
board ]>rior to tlie <*onnnencement of the voyage and needful
or pertaining to the navigation. As to those, it is in every
case a question whether they are or not included in the valua-
tion of the v(»ss<»l itself.
MEASURE OF DAMAGES. 4251
" Third. For those supplies which are in the nature of pro-
visions to be consumed on the voyage.
^' Embraced in these second and third classes are the outfits
and supplies put on board vessels fitted for whaling or similar
voyages, differing in details from the outfits and supplies of
ordinary vessels, but presenting no differences of principle.
" Fourth. For the loss of the freight, either as due for the
carriage of goods in a general cargo or the amount to become
due or agreed to be paid under a contract of affreightment or
charter-party, either for a voyage actually entered upon, the
goods being already on board, or for a voyage agreed to be
made from a port not yet reached, but for which the vessel
has sailed, or on a voyage agreed to be made, but for the per-
formance of which no steps have been taken or progress made,
except to bind the ship and owners, if the ship or vessel survives
accidents, so as to be able so to do.
''All these claims have reference to the owners of the vessel,
and can be made by them only, or by their representatives.
'' Fifth. For the loss of goods on board, whether specifically
as cargo entered on the manifest and paying freight, or as the
property and personal effects of officers or men or of passengers.
"^« to the tthip :
"Tliere4ias been no difference of opinion in the discussions
before us as to tlie measure of damage to the ship or vessel.
The decisions of the courts all agree in giving the owner of the
vessel its value at the time of its loss or destruction. In fbe
law of insurance, its value at the commencement of the risk is
taken to be its value through the voyage, although in fac*.t the
ship is continually deteriorating; but this slight deterioration
is comi>ensated for as an element of the freight.
'^There is nothing in tbe act limiting the right to give the
value of the ship if destroyed. *(The Baltimore^ 8 Wall. 380,
and cases in note; Lowndes on Collisions, 141 et seq.)
"A« to outfits:
"As to that class of outfits which pertain to the navigation,
such as spare spars, sails, extra canvas, and the like, and
materials for the temporary repair of the ship, it has been
contended by the counsel for the United States that they
pro])erly belong to and are included in the valuation of the
ship itself. There is no difference of opinion that when the
value of the vessel is clearly proved, exclusive of this class of
outfits, and the value of the outfits as a separate item of value
is ck^irly shown, their value, if destroyed, is to be given.
425*2 INTERNATIONAL ARRITRATIONd.
'* There is nothing in the act restruiuing us from giving the
viihn^ of outfitH if thus shown; but we shall in each cai^e,
iK^eording to the proofs, estimate the value of the ship and oat-
fits, eitlier eolle<;tive]y or separately, cOS justice shall require.
'M* to the prorisions :
^'There has been no difl'erence of opinion in the discossions
before us as to the allowance for the provisions on boanl,
unconsumed at the time of loss. Their value must be given
either as a separate item of valuation, or as a comi>onent part
of freijrht, according as we shall decide to give judgment for
the loss of freight. Provisions are a fluctuating quantity,
having its maximum at the beginning, and constantly dimin-
ishing as the voyage proceeds, till the minimum is reached at
its termiiiatiim.
** In the case of vessels fitted out for whaling or similar voy-
ages occupying long periods, some of the outfits pertaining to
navigation, as well as the provisions put on boanl and tlie
))araphernalia and nnichinery and the vessels for containing
the )>r(>(luet of the catch, are substantially cargo on board and
must be governed by the rules applicable to cargo.
^''Ah to the measure of damaije for the toss of goods:
"This question has been argued before us with great ability
upon both sides. It is claimed by the owners of goods
destroyed that tlie act intended and expressly directed us to
award to each claimant such a sum as would give him an
* huUmnitii for losses,' (§ 5,) such as would be a ^ compensation tor
the actual loss or damage,' (§1^;) that the claims were for
^iinnuKje (iirectly resultiiu/ from the acts of the insurgent
cruisers/ ^:c. (§ 11 ;) that the words ' cohipensation ' and * indem-
nity' (§ lU) arc used to indicate the extent of the claimant's
rights: that nothing can be indemnity or compensation for this
loss or damage which does not put the clainmnt in the same
situation in which he would have been if the capture and
destruction in t«lie particular case had not occurred. It is,
th(»refore, claimed that the value of the goo<ls destroyetl must
be the sum which they would have brought at the place of
destination at the i)r()l)able time of their arrival, and that the
average length of passages between the ports of departure
and destination should be tak(?n to ascertain the time of proba-
ble arrival in eacli case.
''That this was the market for which tlie goods wereintendeil,
that anything less than the value at the port of destination
kKASURE OF DAMAGES. 4253
would not give indemnity' or 'coinpeuaation' for tbe 'damage
or I0H8.'
'^It is further (claimed that if this measure of value cannot
be allowed, at least the value of the goods at the ]:>ort of desti-
nation at the date of the loss should be given.
'*' All of the numerous authorities cited in support of these
positions were of cases arising ex contractu. They were chiefly
actions brought against carriers, either by land or sea, for non-
])erformance of the contract of carriage. They were ii<*>tions
between the parties to the contract. There is no doubt that
in an action against a common carrier by the owner of the
goods for nondelivery the measure of damage universally given
is the value of the goods at the time and place when and where
tlie carrier has contracted to deliver them. ( Angell on Carriers,
§ 482; Sedgwick on Damages, c. xiii. See the very numerous
cases cited by these authorities.)
''The basis of the doctrine in all these cases is, that it is the
])olicy of the law to hold the carrier liable for the full value at
the time and place of destination, to remove from him all
temptation to fraud. (Gillingham r. Dempsey, 12 Serg. and
K. 1S8.)
*' In this case, which was the first case where the question
arose in Pennsylvania, and in which all the English and
American authorities up to that time were most exhaustively
examined, C. J. Tilghmau says: 'If we consider the policy
which should regulate these contracts, it is best to remove from
the carrier all temptation to fraud, which will be best done by
making him answerable for the value at the place of delivery.
If the goods should be of increased value at the place of
delivery, as they generaMy are, and the liability extends no
fuither than the. value at the place of shi])ment, there is very
great temptation to fraud.^ • • • < ^^ j {f^ would require
very strong authority to satisfy me that where the carrier
fraudulently dispo8e<l of the goods at the place of delivery,
and made great profit thereby, he or his principal shouhi be
responsible lor no more than the value at the place where he
received them.' ( Watkinson v. Laughlin, 8 Johns. 213; Emory
r. McGregor, 15 Johns. 24.)
"Another class of cases cited by the counsel for the claim-
ants grows out of the contract of insurance.
'•When jettison is made of goods for the relief of the ship
in case of peril, the owner of the goods so jettisoned, if the ship
4254 INTERNATIONAL ARBITRATIONS.
arrives, is entitled ti> be paid for them the price they wonld
have brought at the time of the arrival and at the place of
destination. This value is given on the obvious equity that
the owner of the goo<l8 whose destruction has enabled the
others to arrive shall be in no worse condition than are those
whose proi)erty has been saved by his sacrifice.
''But if the ship does not arrivcy if the rest are not carried
forward, the goods jettisoned are to be paid for at their valne
at the place of shipment, with charges, insurance, and interest
(Tudor r. Mac^mber, 14 Pick. 34.)
''So, if tlie ship is compelled to put into port in distress, and
to make repairs or procure supplies, where the master has no
funds and no credit, he may sell a part of the cargo to procure
funds ; and if the ship aftertcards arrives^ the owner of the goods
sold shall have for them the price which they would have
brought if tbey had remained on board, namely, their value at
tlie time and place of destination.
"But if she does not arrive^ the value to be paid for them is
their value at the port of departure, with charges, insurance,
and interest. (Abbott on Shipping, 372; Mayneon I>amages,
223; Richardson v. Nourse, 3 B. & Aid. 237.)
" Both these classes of cases ate exceptions Xa) the general
rule followed in actions upon policies of insurance, and both
stand upon the same ground, that the owner of the goods sac-
rificed in jettison, or sold for the exigencies of the voyage, shall
be in the sauM* condition as are the other owners whose goods
have been insured a safe arrival by his sacrifice. If the^'g-ain
a i)rolit, so shall he, but if the ship fails to arrive then the
goods of all ])arties are to be valued at the same standard,
namely, that of the ])lace of shipment.
"But the act creating this tribunal, it seems to us, has
expressly taken away from us the power to estimate the dam
age upon the principle contended for. Section 12 expressly
provides that in no (;ase shall any claim be admitted or allowed
foror in respect to ♦ * ♦ prospective profits^fveXQlM^^gains^
or adrantngeH,
" Prospective prolits means that profit or advance in price
which the owner of goods expects will take place between the
place of shipment and the place of destination.
"This is sonic^times called projit^^ sometimes jpro&a&Z^ profits,
and sometimes expected profits. (Phillips on Ins., § 1209; Ben-
ecke, i)i>. 2G, 27, 28, 29, 'M), 119, 125; Stevens and Beneck6, 14.)
MEASURE OF DAMAGES. 4255
"Pro8];>ective profits, as applied to goodn, can refer only to
the difference in price between the port of lading and the port
of discharge. Profits expected after the time of discharge
have never been given as damage in any case.
"Profits in this sense — expected profits, prospective profits —
are the constant sabject of insurance, and are certainly as
insurable as any other interest; but an insurance to cover them
must be of profits eo nomine; they cannot be insuriBd under the
name of goods or cargo unless in a valued policy. Of course,
such exi)6cted profits may be included in the valuation of
goods in a valued ]>olicy on goods, but valued policies rest upon
principles peculiar to themselves, by force of which the assured
may value as high as he pleases, and the insurer is bound
thereby. Valuation in the policy binds both parties in the
absence of gross fraud.
"The act enjoins upon us to decide upon the amount and
validity of these claims h'n conformity with the provisions of
the act, and according to tlie principles of law and the merits
of the several cases^ (§ 11). We are to find some rule of val-
uation which will accord with the provisions of the act and
with the principles of law at the same time. Both injunctions
are to be obeyed if tliey can be, and the act assumes that they
may; and if in examining these claims we can find a course of
decisions which will enable us to follow settled principles, and
at the same time to give effect to the restrictive clauses in the
act, those decisions we must follow.
"The rule of damages followed by the courts of this country
and of England in actions upon the contract, and between the
parties to the contract of carriage or affreightment, as we have
seen, cannot be followed by us. They include a valuation which
we are expressly forbidden to allow.
" But there are two classes of cases, eitlier of which we may
follow, keeping within the principles of law, and at the same
time not contravening the provisions of this act. One of these
arises in actions of tort, and the other in actions of contract.
"From the earliest period in our judicial history actions
have been brought by the owners of goods against persons
other than the parties to the contract of affreightment, grow-
ing out of torts committed against the goods while in transit
on tlieir way from the port of lading to an intended ]K)rt of
discharge.
"The earliest of these which rejiched the bupreme Court
4256 INTERNATIONAL ABB1TRATION8.
of the United States was in 1794. (Del Col v. Arnold, 3
Dallas, .%•«.)
"This was a case of a vessel wrongfully captured by the
coniinander of the ConnU'llationy an American vessel of war,
and brought into the ]M)rt of Phihidelphia, where the captain
instituti^d pnK^eedings for her condemnation. Pending these
proceedings the cargo was sold, and the consul of Denmark
intervened in the ciuise, claiming the vessel and cargo as the
property of a Danish subject. The cause was heard by the
Suiireuie Court upon appeal, and Chief Justice Marshall gave
the opinion of the court, wherein they fixed the standard of
damages by directing in their decree Hhat the cause be
remanded to the circuit court, with directions to refer it to
commissioners, to ascertain the damages sustained by the
claimants, • ♦ • and that the commissioners be instructed
to take the actual prime cost of the cargo and vessel, with
interest thereon, including the insurance actually ])aid, and
such ex]>enses as were necessarily sustained in consequence
of bringing the vessel into the Ignited States, as the standard
by which damages ought to be measured.'
"A large sum was awarded against Ca[>tain Murray in pur-
suance of this de(!ree, which he was obliged to pay, and which
was afterwards reimbursed to him by act of Congress from the
Treasury of the United States. (Act January 31, 1805.)
"The rule of damages thus established has been followe<l
from that day to the present, through a series of decisions
entirely unbroken and unchanged. (The Charming Betsey, 2
Cranch, 04; Maley r. Shattuck, :5 Cranch, 458 (ISOC); the
schooner LinUj and cargo, 1 (jallison, 315 (1812); the Anna
Maria, 2 Wheat. 327 (1817); the Amiable Nancy, 3 Wheat.
546 (1S18): i;Amistad de Hues, 5 Wheat. 385 (1820).
'^The same rule was applied in the case of an unlawful and
nnjustiliable seizure of a vessel by the officers of the revenue
in 1S24. (The ApoUoii, 9 Wheaton, 302.)
''Story, »]., says, p. 370: * This court on various occasions
has expressed its decided opinion that the probable protits of
a voyage, either upon ship or cargo, can not furnish any just
basis for the coni|)utation of damages in cases of marine tort'
» # * i When the vessel and cargo are lost or destroyed,
the just measure has been di^emed to be their actual value,
toi^etlier with interest upon the amount from the time of the
trespass. * * * An<l it may be truly said that if these
MEASURE OF DAMAGES. 4257
rales do not farnisU a complete iudemuification in all cases,
tbey have so niuch certainty in tbeir application, and such a
tendency to suppress expensive litigation, that they are enti-
tled to some con^mendation upon principles of public policy.'
^^The rule established in these cases was folloi^ed in the
first case of damage arising from collision which came before
that court. (Smith v. Coudry, 1 Howard, 28 (li^).
^^This rule has been followed by the district and circuit
courts in all succeeding cases, and has been aftirmed in a very
recent csise by the Supreme Court. (The Yaughan and the Tele-
graphj 14 Wallace, 258; the Ocean Queeriy 5 Blatch. 493.)
^' The other class of cases are those actions brought ui>on an
unvalued or open policy of insurance.
^^ It is claimed in the argument before us that the rule in
these cases does not make good the damage or IohSj does not
indemnify or compensate the parties.
"But it does give that indemnity which, by the custom of
merchants ever since insurance was pnictised in England or
in this country, has been given in actions upon policies of in-
surance not valued; that is, under open policies. And in
fixing the standard of indemnity to be given in a case of col-
lision the Supreme Court expressly followed the practice
adopted in cases of insurance from the earliest times. (Smith
V. Condry, 1 Howard, 28.)
"The injured ship in this case was at anchor, ready to sail,
in the harbor of Liverpool, laden with salt, intended for sale
in the port of Alexandria, where she expected to arrive in
sesisou to dispose of her cargo at a large profit. The })lain-
titts claimed to recover the value of the salt at the place of
her destination.
"Taney, C. J., in giving the opinion of the court, says:
^The plaintiffs offered to prove that if the ship had not been
prevented from sailing by the injury complained of she would
have arrived at (leorgetown in season to have niiide a large
profit on her cargo.'
"Hut, it will be observed, he makes no allusion whatever to
tlie long course of decasions in the cases of illegal captures
already referred to, but adoi)ts the rule of law in cases of insur-
ance as furnishing the proi>er standard of damages, lie says
(p. 35), 'It has been repeatedly decided in cases of insurance
that the insured cannot recover for the loss of probable
profits at the port of destination, and that the value of th^
4258 INTERNATIONAL ABHITRATIONS.
goo(l8 iit the place of sliipmeiit is the measure of compensa-
tion. There can be no good reason for establisliing a differ-
ent rule in cases of loss by collision. It is the actual damage
sustained by the party at the time and place of the injury
that is the measure of damage.' He expressly calls the dam-
age thus measured the actual damage suffered by the party.
^'The text writers on insurance are uniform in their defini-
tions of the words Iohh or damarje^ and of the corresi>onding
words indemnity and compennation.
^^ Indemnity is the compensation for loss or damage.
'^ Mr. Phillips says:
"'The principle of insurance is indemnity.
"*The indemnity proposed in marine insurance is to restore
the assured as nearly as may be to the condition he was in at
the outset.
'"It is not intended by the contract of insurance to put the
assured in the same situation in case of loss that he would have
been in had the adventure terminated successfully. He must
take the chances of his speculation on the state of the markets.
The indemnity refers to the beginning of the risk.' (2 Phillips
on Insurance, § 1220.)
^^ Ibid. § 1219: *The value of the interest is to be estimated
at the time of the commencement of the risk.'
*' Emerigon (Am. Ed., 1850), c. 1, § iv. p. 13, states the prin-
ciple upon which insurance is based.
*''It is plain that insurance is not a source of gain to the
assured.
'''•Aftsecuratu^ non quwrit lucrum, sed agit ne in damno «t<,'
says Straccha.
"'In a word,' he continues, 'one may have insured only what
one Vuns the risk of losing, and by no means advantages which
one mav fail to idealize.'
" Ihidj p. 213 : 'As soon as the assured is indemnified for this
value [the value at the time and place of lading] his lawful
interest is satisfied.' (1 Arnould on Ins., 301, 302; JWc?, 324,
325, 329; Benecke, ch. 1; Stevens & Beneck^, 13.)
" That this is the rule — that the loss or damage to be compen-
sated for or indemnifird against, in cases of insurance in ixdicies
not valued, is the value at the commencement of the voyage —
hardly needs a citation of authorities.
"The leading authorities in England are: Usher r. Xoble,
12 East. 639; Lewis r. Hucker, 2 Burr. 11G7.
" The case of Winter v. Haldemand, 2 B. & Ad. 049, is inter-
MEASURE OF DAMAGES. 4259
enting, because it was a case of loss by capture under an open
policy.
'' Sir James Scarlett, in argument, stated the rule (pp. 652,
653) in accordance with which the case was decided. He says:
' The rule, invariably adopted in case of an open policy, is to
estimate a total loss, not by any supposed price which the goods
might have been deemed worth at the time ot the loss, or for
whicli they might have been sold had they reached the market
for which they were destined, but according to the cost, viz,
the invoice price and all expenses incurred till they are put on
board.'
<^The leading American cases are: Snell v. Delaware Ins.
Co., 1 Wash, C. C. 509; Carson v. Marine Ins. Co., 2 Wash.
C. C. 468; LeRoy v. United Ins. Co., 7 Johns. 343; Coffin v.
Newburyport Ins. Co., 9 Mass. 436.
^^ The latest case on this subject is Warren v. Franklin Ins.
Co., 104 Mass. 518.
^' It is needless to cite authorities further. The rule of dam-
age, or of value in case of damage, is perfectly clear in all cases
of marine torts, and the same rule is also universally adopted
in^that great branch or class of contracts known as insurance,
and equally well settled in this country, where we distribute
this fnnd, as in Oreat Britain, whose government has paid the
sum out of which arises our jurisdiction.
"Were these claimants prosecuting their claims in a court
from which an appeal might be taken to the Supreme Court of
the United States, can there be a doubt what would be the
standard of damage and indemnity which would be there
applied f
" In some aspects the rule of law applicable to insuraiice
seems peculiarly applicable here, inasmuch as England may
in some sense be considered in the light of an underwriter upon
an open policy, against any loss by capture at the hands of the
cruisers for whose depredations she was held re8iK)nsible.
" We ought also to say that in coming to this conclusion we
have not been constrained in our judgment by the restrictive
clauses of the act, but that without them we should have felt
bound to adopt the same standard of value as being < accorded
to the principles of law.' It seems to us that the restrictive
clauses of the act were, so far as they apply to goods, intended
and most carefully adapted to declare the law upon this branch
of the subject, and not to make any new rule.
" We therefore are of opinion that the measure of value of
6627— VOL. 4 65
4260 INTERNATIONAL ARBITRATIONS.
goods deatroyed by the depredatioas of the oraiaers, for whoBi
acts this fund is created, is to take the valne of the goods a
the time aud place of uhipmeut, with charges upon them til
put ou board, with the marioe insaraiice actually paid, an(
intereat on the aggregate so made from the date of parchaai
01 ahipmeut till the time of the destraction at the rate of ah
per ceut. For that sum judgment will be entered, aud by tb<
t«rmB of the act intereat thereafter will ran at fonr per cent.
"In every case, therefore, wemoatlookto thetimeofpaymem
for the goods in cash, as shown by the evidence, to obtain tin
basis for the calculation.
" We believe this measure of value to be tbat universall]
adopted in all cases of marine torts by the Supreme Court oi
the United States, which that conrt would certainly apply i
an appeal lay from our decision to that court.
" It is also the measure of value given by the tribnnala o:
all countries in fixing the indemnity required upon ooutractf
of marine insurance.
" Further, any other measure of value we are forbidden U
give by the language of the law under which we act, whict
expressly excludes prospective profits from our estimate of tjii
losa.
"A* to the freight:
" Having now considered the question of the measure of valuf
of the cargo, we will proceed to the consideration of the (]ue»
tion of freight.
"As between the owners of the ship and cargo, the parties
to the contract of allVeightment, freight is not earned nntil tb(
goiKls are discharged at the port of ilestination, uuteas thf
owner sees fit to receive them at an intermediate jtort.
"As between the parties, no frt-ight is earned until that porl
iarea<;hed; but as between piirties other than the parties t«
the contract, freight ia pro])erty in every sense of the law fruin
the moment when the charter party is executed and the vessel
has oummeiiced to take in her cargo, or has left any port foi
the parpose of performing the voyage to which the contract
of affreightineiit refers.
"As against the charterer, the owner of the ship has a right
to earn freight from tlie moment of the signature of the con-
tract.
"As against a wrongdoer, freight is earned fix>m the mo-
ment of the inception of the voyage.
MEASURE OF DAMAGES. 4261
"Freight is property which may be iusared. It is property
for which contribation must be made in cases of general aver-
age, and in case the vessel is destroyed or injured by any act
or negligence of a stranger to the contract, damages in all
cases may be recovered for its loss.
" It is none the less property because intangible, or because
it is a vhose in (iction. The rules of law applicable to tangible
property are equally applicable to this, and are applied daily
in all the courts.
" In cases of insurance upon an open policy on freight, the
owner recovers the gross freight without deduction. (2 Phil-
lips on Ins. § 1238; Arnonld on Ins. ed. 1872, p. 304.)
'^ In cases of general average the owner of a vessel is bound
to contribute not only on the value of his vessel, but on the
amount of the net freight made up to the time of the injury or
sacrifice. (Dixon on Average, 187 ; Lowndes on Average, 107.)
"In cases of loss of freight which is to be contributeil for in
general average, gross freight is contributed for. (See author-
ities livst cited.)
" In cases of collision and other marine torts, net freights
are allowed against the wrongdoer. (Williamson v, Barrett,
13 How. 101, 111; the Gazelley2 Wm. Rob. 279; th^ Baltimore^
8 Wallace, 386; the (? fa wcu«, Lowell, 371; the bark Heroine^
1 Benedict, 226; Egbert v. Bait. & Ohio R. R., 2 Benedict, 225;
the GalaUttj 6 Benedict, 259; Allen v. Mackay, Sprague, 219;
the Rebecca J Blatch. & H. 147.)
<^ In cases of illegal capture, or of destruction of a vessel by
illegal capture, the owner has been throughout the whole his-
tory of ])rize courts held to be entitled to his freight, not net
freight merely, but full or gross weight. (See authorities
below.)
^< If a neutral vessel having enemy's goods on board is taken,
the captor pays the whole freight, because he represents the
enemy by i)ossessing himself of the enemy's goods jure belli;
and, although the whole freight has not been earned by the
completion of the voyage, yet, as the captor by this act of
seizure has prevented its completion, his seizure shall operate
to the same efifect as an actual delivery of the goods to the
consignee, and shall subject them to the payment of the
freight. (The Copenhagen, 1 0. Rob. 28J», 291; the Hoop, 1 C.
Rob. 196, 219; the Bremen FluggCy 4 0. Rob. 90; the Vrow
Henricay 4 C. Rob. 343;'*the Anna Catarin^j 6 C. Rob. 10;
4262 INTERNATIONAL ARBITRATIONS.
the Catherine Elizabeth, 1 Acton, 309; the FortunUy Edwards,
Ad. 56.)
" The allowance is of full freight, (The Fortunaj ubi sup. 57.)
" The neutral vessel's right to freight has priority over even
the expenses of the captors. (The Vrow Henrica^ 4 O. Rob.
343.)
<<A neutral vessel was lost by the negligence of the captor
while being taken into port, to which she was being taken in
order to unliver her hostile cargo. The captor in this case, a
uaval officer of Great Britain, was held liable to payment of
the entire freight, in addition to the value of the vessel and
cargo. {Der Mohr, 4 C. Rob. 314.)
<< The English Government paid the amount.
^^ The doctrine of these cases is well established in this
country. (The Commercen^ 2 Gallison, 261.)
"Story, J., 'The general rule that the neutral carrier is
entitled to his freight is now too firmly established to admit of
discussion' (p. 264).
" Same case on appeal (1 Wheaton, 382), Story, J., in giving
the opinion of the Supreme Court, affirmed this doctrine.
" C. J. Marshall and Livingston and Johnston, JJ., who dis-
sented from the judgment, affirmed the same doctrine, and
would have allowed freight, which the majority of the court in
the particular case denied.
"When neutral property was found on board of an enemy's
ship, and the captors substantially delivered the property to
the owners at the place ultimately intended as its destination,
the captors were held entitled to freight upon the property.
(The ship Anna Green and cargo, I Gallison, 274.)
"Having seen how freight is treated in the prize courts and
in actions against trespassers, we proceed to see how freight is
considered in the law of insurance. When is freight recover-
able under a iK)licy of insurance? When does it become cog-
nizable in insurance law as a value, as a property, which may
be lost or damaged or destroyed!
<* Where cargo is on board of either a general ship, sailed by
the owners, or where the vessel is actually carrying her cargo
under a charter party for a particular voyage, there is no
doubt that the pending freight is an existing value, the right
to which is protected by all courts, and for the loss of which,
if insured, the owner may recover.
*• And where the ship is under a contract to carry freight by
a charter party executed, the freight reserved or agreed to be
MEASURE OF DAMAGES. 4263
paid is an existing value, may be the subject of insurance, and
may be recovered from the underwriters in case of the loss of
the ship.
** * Where the freight is the price of the hire of the ship under
a charter party, the cases show that the inchoate right to
freight vests in the shipowner directly the ship has broken
ground on the voyage described in the charter party.' (1 Ar-
nould Ins. 237, § 106.)
<< ^Inchoate rights to freights founded on subsisting titles,
unless prohibited by positive law, are insurable.' (Lueena v.
Crawford, 2 Bos. and Pull. 95.)
" 'Where there is an expectancy coupled with a present ex-
isting title, there is an insurable interest.' {Ibid. p. 293.)
"The test of insurable interest is ^ an expect-ancy coupled
with a present existing title.'
" In Bobinson v. Manf. Ins. Go., 1 Met. 146, Chief Justice
Bhaw says:
"'In general the inception of a voyage even in ballast from
one port to another pursuant to a charter party is an inception
of the voyage on which freight is to be earned, and if the ves-
sel is lost before arriving at the first port to take in cargo, it is
a loss on freight.' (See also 3 Kent, 5 ed. 311; Eiley v. Hart-
ford Ins. Co., 2 Conn. 373; Hart r. Delaware Ins. Co., 2 Wash.
C. C. 346; De Longuemere v. The Phcenix Ins. Co., 10 Johns.
127; the same v. The New York Ins. Co., 10 Johns. 201.)
" In McGaw v. Ocean Ins. Co. (23 Pick. 409,) Chief Justice
Shaw said :
"*In general terms it may be said that the insurance on
freight will attach when the shipowner is in such a situation
in regard to his vessel and voyage that nothing but the inter-
vention of one of the perils insured against can prevent him
from completing his voyage and earning his freight.' (Adams
V, Warren Ins. Co., 22 Pick. 165.)
" Mr. Justice Chambre, in the case already cited, of Lueena
V. Crawford, says : * It would be very extraordinary if freight
could not be made the subject of protection by an instrument
which had its origin in commerce, and was introduced for the
very purpose of giving security to mercantile transactions; it
is a solidy substantial interest ascertained by contraoty arising out
of labor and capital employed for the purposes of commerce.'
" Mr. Phillips summarizes the doctrine of all these cases.
"1 Phillips on Ins. § 334, p. 192: *A charter party being
miule for successive piissages at an entire freight, the interest
4'264 INTERNATIONAL ARBITRATIONB.
in the whole frel|;ht commences on the first passage, though
the ship may sail in ballast merely on that passage, provided
it is let by the assured or he has a cargo at the intermediate
IK>rt.'
^^ And § 335: < A vessel being chartered fW>m A to B, the in-
terest in the freight commences under the charter party on the
voHsc'ls sailing for A either in ballast or with a small quantity
only of gooils for B.'
^^ And he sn])ports these iH>sitions by Livingston r. CoL Ins.
Co., 3 Johns. 40; Hart r. Del. Ins. Go., Condy's Marshall, 281
w, 2 Wash. 0. C. 346; Adams r. Warren Ins. Co., 22 Pick. 165;
Kobinson r. Manf. Ins. Co., 1 Met. 143.
'* Freight, as between-the owner of the vessel and any other
p<^rson than the owner of the goods, is property or value the
moment the goods nre on board or a valid contract is made by
the owner of the vessel therefor.
*' What would be the measure of damage in a suit by the
owncT of the vessel against the charterer for a breach of his
contra<!t to furnish a cargo may be seen in the following cases,
and is substantially the same as net freight: Hunter r. Fry, 2
Barn. & Aid. 421; Fuller r. Staniford, 11 East 232; Smith r.
McGuire, 3 Hurls. & N. 554; Ashbifrn v. Baldwin, 7 N. Y.
202; Fox r. Harding, 7 Cushing, 516; Bailey v. Damon, 3
Gray, 92.
*^ Freight, therefore, being recognized in all courts as prop-
erty, which may be destroyed, damaged, or lost by the acts of
wrongdoers, is clearl}' an element of value, for which the claim-
ants now before us are entitled to receive some sum as indem-
nity for the loss and damage which they have sustained.
*Mn the cases above cit<?d from the admiralty courts of
England, tlie doctrine of which is approved by our own courts
(the sliip Anna Oreen and cargo, 1 Gallison, 274), where neu-
tral vessels were arrestc»d and carried into port in order that
the entire cargo which they contained might be condemneil, it
was held that the owner of the neutral vessel, not being in
fault, was entitled to tlie full freight which he would have
earnc^l if his voyage had not been interrupted.
"The cases before us present closely analogous situations,
looking at the cargoes and vessels separately. The owner of
the vessel destroyed, but lor the destruction of his vessel, would
have pro(!eeded on his voyage and earned the freight which
was agreed to be paid for the carriage of the goods on board.
The wanton destruction of the cargo did not, as against him,
MEASURE OF DAMAGES. 4265
the owner of the vessel, destroy or take away his property in
the freight which the law everywhere recognizes.
" If the Confederate cmiser had captured one of these ves-
sels, and had been allowed to take her with her cargo into an
English prize court for condemnation, and had there failed to
make good his right to condemnation, on the ground that inas-
much as he had fitted out his vessel m England he could make
no lawful prize, those courts would have restored the vessel
and cargo, so that the vessel might ])roceed on her voyage and
earn her freight; or, in case the property had been burned in
port by the negligence of the captors, would have awarded to
the claimant the value of the ship, cargo, and freight. (Der
Mohry ubi sup.)
"Freight, gross freight, net freight, prospective freights, or
expected freight, are terms often used in the books.
"Freight is the generic term which includes all.
"Gross freight needs no definition; it is the entire sum to
become due to the owner of the vessel on the complete dis-
charge of her cargo at the port of destination.
"Net freight is a term never used as between the owner of
the vessel and the charterer. It is a term whose use is made
necessary by some occasion to api)orti(m the gross fl^eight by
reason of an act or thing which has occurred pending the
voyage, causing either a tem|)orary or permanent interruption
of the voyage, in which case it is needful to look at the freight
to be earned if the whole voyage should be completed, as an
existing value either in whole or in part, in connection with or
in comparison with the other values engaged in the enterprise,
namely, with the vessel and the cargo on bo^urd.
" This comparison of values is perhaps never made between
the owner of the vessel and the charterer. As between them
the question is almost universally of the whole freight or of no
freight. If the vessel arrives at an intermediate port, and the
owner then receives his goods, he pays freight |^o rata itineris
pera^cti.
" But this comparison of values often takes place from neces-
sities growing out of some forcible or providential interruption
of the voyage.
" Forcible, as by capture or seizure of vessel or cargo, or of
both.
"Vessel and cargo may be seized as being both hostile
property.
"The vessel may be hostile while the cargo is neutral.
4266 INTEBNATIONAL ARBITRATIONS.
<<The vessel may be neutral while the cargo is hostile.
^<Both may be neatral and yet seized unlawfully.
<' If the vessel is neutral, yet she must be carried in to unliver
the hostile cargo.
<Uf the vessel is hostile, she must be taken in to discharge
and deliver up her neutral cargo to the owner.
^< So there may be damage done to vessel or cargo, or both,
by collision. The voyage is interrapted or destroyed, and the
various values of ship, i*argo, and freight must be examined
into at a iwiiit between the i)ort of lading and discharge.
•^ And then there are losses by the })erils of the seas, in which
the vessel, cargo, and freight may be either partially or totally
lost, and these valaes must be adjusted and compared as
between the owners and underwriters of the several subjects.
<<In all these cases there is an estimation of freight as the
property of the owner.
^^The losses which we are called upon to consider took place
by captare, unlawful capture as against England, at a point
between the ix>rts of departure and destination, and are entirely
analogous to the cases of unlawful capture and seizure admin-
istered under the law of prize.
'^The voyage is interrupted in its midst, and we are to fix
the values of the sevenil elements constituting the loss, at the
time and ])]ace of the destruction.
'' 'A('(?<)rdiiig to the principles of law,' as administered in all
the courts, these claimants are entitled to recover for the loss
of freights destroyed by the acts of these cruisers.
*' What shall be the freight allowed?
^<Jt can not be the gross freight, because the allowance of
that is expressly prohibited by the act.
^^The disallowance of gross freights is an implied i)ermis8ion
or direction to allow net freights.
"It is clear we are to allow some freight; if not gross freight
it must be net freight.
" On this subjecjt we deiive instruction from the proceedings
at Geneva. The arbitrators rejected the claim for gross
freights, and did allow a large sum as net freights, as their
proceedings show.
'^ There are two terms used in the act descriptive of freights
which remain to be considered.
** What are ^ prospective ' freights ? Prospective we conceive
to be synonymous with 'expected' freight, which is a term
very often used in the books. We have already defined the
MEASURE OF DAMAGES. 4267
term prospective as applied to profits as being the profits
which the owner of goods hopes to gain from the difference in
price between the port of shipment and the port of discharge,
sometimes called profits and sometimes, also, expected profits.
" Prospective, as applied to freights, we conceive to mean
that expectation of obtaining a cargo, and so of having a
freight upon a voyage projected but not yet entered upon, as
to which the owner has no certainty, no contract, no charter
party, bat which in the law of insurance may or may not be
held to give an interest on which insurance would attach.
<'It is called an < expectancy,' as when a ship is going in
ballast to a place where the shipowner owns goods, which she
shall there take on board and carry to another port. (Hart r.
Del. Ins. Co., 2 Wash. C. C. 346.)
*^Or where he does not own the goods, but has contracted
to purchase them, and has prepared funds to pay for them,
and the goods are ready to be delivered to him to put on board.
(1 Parsons on Ins. 177.)
^<What are prospective fi'elghts may be further illustrated
by Forbes v. Aspinwall, 13 East. 323; Forbes v. Oowie, 1
Camp. 520.
**Iu these cases the owner had no charter party or other
contract for freight, but goods were on board sufficient to pur-
chase the remainder of the homeward cargo that were saved
and afterwards bartered for goods which would have complete<l
her homeward cargo. She had discharged part of her outward
cargo and taken in fifty-five bales of cotton, part of her home-
ward cargo, and was lost in this condition. It was decided
that she should recover only the freight on the fifty-five bales
of cotton. (So in Kiley r. Hartford Ins. Co., 2 Conn. Rep. 308.)
'^ Freight was insured on goods laden or to be laden, and a
part of a car^o was taken on board at Gibraltar, and the ship
was proceeding toward the Cape de Verde Islands with funds
on board to purchase salt there to make up the cargo, when
she was lost.
'^ It was held that the insurable interest had commenced
only in respect of the goods shipped at Gibraltar.
" Another exani])le of prospective freight may be found in
Adams v. The Peun. Ins. Co., 1 Bawle, 97.
^'To apply a phrase before quoted, we should say ^expect-
ancy,' not 'coupled with an existing title,' is * prospective.'
(1 Arnould on Ins. 293.)
''Congress seems to hnve hnd in view tlie probability that
r
t
4268 INTERNATIONAL ARBITKATI0N8.
claims might be made not ouly for the freight actnally on board
or actually contracted for, but for the freight which the vessel,
if not destroyed, might have subsequently earned, either with
or without any definite grounds of expectation, and to have
declared that all these should be excluded. They may have
thought insurable interest on freight would be sought as a
test of loss of freight, and intended to have excluded that test
in these cases.
<< Such freights or com})ensation for the loss of the use of
If the vessel during repairs after collision have been demanded,
and in some cases allowed. (Williamson v. Barrett, ubi sup.)
<^What meaning shall we give to the term < unearned
freights!'
<< The counsel for the government insists that under the use of
the words unearned freights, net freights for the entire voyage
cannot be allowed, but only net freights pro rata itineris
peracti,
i "Having shown that freight is property, as clearly recog-
nized in law, as the ship or the cargo, or bullion, or coin; that
although intangible and resting in action, it nevertheless is
protected everywhere by the courts, and that it may be lost or
destroyed or damaged, we feel constrained to award a sum
sufficient in law to indemnify the claimants for this loss or
damage, unless prohibited therefrom by the express provisions
of this act.
"We will not presume, except upon clear proof derived
from the consideration of this statute, that Congress intended
to take away from any of these claimants that which the courts
of all nations under like circumstances protect.
" We shall not, in the decision of the case now before ns,
which is the case of a vessel with her cargo actually on board,
go further than is necessary for the decision of this and cases
exactly similar. We only ])ropose here to show that the term
Mmearued' does not apply to this principal case and to others
similar to it. And in stating to what cases we conceive the
{ word * unearned' does ai)ply, we must not be understood as
limiting it to precisely the cases we name. It is sufficient
for the decision of this case to show that it may apply to other
cases and does not apply to this.
"The term unearned can have no application as between
the owner of the vessel and of the cargo in an action upon the
contract of affreightment; as between them freight is never
earned till complete delivery.
,■ r
'^
MEASURE OP DAMAGES. 4269
^^But as against underwriters on freigUt, freight is not un-
earned when anything has been done toward earning it under
a contract or charter party therefor. So soon as the ship is
bound to the goods and the goods to the ship by a valid con-
tract, and any forward step has been taken by the ship toward
the performance of the contract having connection with no
other thing, the underwriter is liable for a loss of freight.
<' Still more, when, as in the present case, the cargo was on
board and the ship was actually engaged in carrying the goods,
the vessel as against wrong doers had begun to earn, and as
against them freight was not unearned.
^'As against the owner of the goods under the contract it
was not earned, but as to him even it was not unearned — it
was partly earned.
<^ To what does the term apply!
<' Without deciding that it may not apply to other cases, we
think it was intended to appl5^ to cases where charter parties
had been made, binding both the ship and the charterer, where
under the law of insurance the owner of the ship may have
had an insurable interest in the amount of the freight to be-
come due under the contract, but where no forward step had
been taken by the vessel toward the execution of the charter;
where nothing has been done under the contract, where noth-
ing has been done which would not have been done if there
had been no contract.'
<^For example, a vessel being upon a passage from New
York to San Francisco with a cargo, during this passage the
owners charter her for a voyage from San Francisco to any other
port. This (*harter party executed would give the owners an
insurable interest in the entire freight, not only upon the voy-
age to San Francisco not yet finished, but also upon the second
voyage to commence at San Francisco; but till she reaches San
Francisco, and has discharged her cargo there, she ha^ taken
no step, done no act, toward earning the freight upon the sec-
ond voyage. The freight in this voyage, though insurable, is
in no part earned.
^^ We think that the word unearned as used here was not
intended to exclude us from allowing freight on the voyage
actually pending at the time of destruction, but was intended
to exclude us from making the time when insurance on freight
attaches the test of the right to freight; to exclude us from
allowing freight in that cUiss of cases where as against the
underwriter the assured*niight recover for loss of freight, but
A
I
4270 INTEENATIONAL ARBITRATIONS.
'■ I
I
r's
I
'11
in which the freight, though contracted for in a valid charter
X^arty, was in no part earned, where the ship had not com-
menced the series of acts the performance of the whole of
which would entitle her to the entire freight.
<< In allowing net freight in the particular case under con-
sideration, and in similar cases, we shall feel bound to charge
the gross freight in cases where we think justice shall require
it, with interest on the value of the vessel, and also a sum to
cover the probable depreciation of the vessel, in addition to the
other items usually mentioned as needing to be deducted from
the gross freight. The act gives interest on the value of the
ship from the date of her destruction at 4 per cent. We ciin
not give to the owner without charge the use of the same ship
the value of which in contemplation of law the government
pays for on the day of its destruction.
" The questions raised by the difference in currencies present
great difficulties and embarrassments. If these claims were
being considered by a board of <asses$ors, as might have been
under the treaty, and if the amount of the claims were to be
paid directly from the exchequer of Great Britain, which has
but one currency, it is extremely probable that every claim
would have been reduced to the standard of gold, and that
value which is the coin equivalent of these claims would have
been awarded. It is quite possible, indeed quite probable,
that this consideration induced the arbitrators to award a sum
in gross, thus remitting all questions of value represented by
or dependent upon the fluctuations of our currency to a tri-
bunal to be established by the United States. These difficul-
ties must now be met by us.
" In the argument of the eminent counsel for the United
States we were urged to fix for the value of all goods pur-
chased in coin or in any other currency than the legal-tender
currency of the United States, such a sum in currency as would
be etiuivalent to the value of coin at the present time. But wo
see no principle upon which such a standard can be adopted.
It would still be entirely uncertain how near or how far the
sum so fixed would be from the value of gold as compared with
j currency at the time when the amounts awarded by us will be
' in fact paid. It would muke two standards of value, for which
we see no necessity, and no warrant in the law.
" We are left to adopt some rule. It can not be contended
that in the case of goods bought during the war for currency
we should reduce tVieii: womvwwV o^ost tvi vUa t&taudard of coin at
;i
■ I
.1
I
4i
r 1
MEASURE OF DAMAGES. 4271
the day of purchase, and theu reduce the coin value to the
value of currency of to-day, which it would be necessary to do
if we would have only one standard of value.
^^ We are entirely clear that such a course would be unjust
to a large class of the claimants. It will give more equal jus-
tice to all to reduce the coin prices actually paid in cases
where purchases were made in coin to currency at the rate of
the day of purchase, and enter the judgment for the currency
cost so ascertained. We see no way in which we can justly
adopt two standards.
«< To be sure, the rule last suggested will give judgment for
a sum in currency, which, received in the prices of gold of to
day, will, if exchanged into gold, give the claimant a sum in
coin in excess of what he would otherwise be entitled to claim.
*< But the fact that this consequence would follow was not
deemed by the Supreme Court a sufficient reason for changing
the standard of currency adopted in the circuit court in the
case of the Vaughan and the Telegraphy 14 Wallace, 258; Gush-
ing r. Wells, Fargo & Co., 98 Mass. 550.
^^ But the rule first suggested would give to the other claim-
ants a sum much less than they ought to re(;eive.
'^The inequality in both these cases arises from the fact of
the appreciation of tbe legal- tender currency as compared
with gold. If we adopt gold as the original standard of value,
we give to the government the benefit of this appreciation
and fail to indemnify the claimants. If we adopt t!ie other
standard, we give the benefit of this appreciation to the sev-
eral claimants. The claimant in this case obtains an incidental
advantage. But as between the claimant and the government,
we think this incidental benefit belongs to him. He was com-
pelled by force of law to purchase in legal tender; it was not
optional with him whether to do so or not. The value of thf^
enforced currency did not depend upon him. The disadvan-
tage of its use ought not therefore to fall uiK>uhim, but rather
upon the government, which compelled him to make use of it.
!No rule which we can adopt will give exact justice in every
case; and as we can have but one rule, and must enter our
judgments in currency, we must make our valuations accord-
ing to that standard. This, if not exactly right in every case,
has the advantage of simplicity and uniformity, and will more
nearly give a just indemnity in every case than any other
course.
'*' Applying these principles to the determination of the pres-
4272 INTERNATIONAL ABBITBATI0N8.
ent case, after having given due consideration to each portion
of the liirge mass of testimony presented to us, we award —
<'In No. 278, to Henry Wilflon Habbell, the sam of $114,283.41
<*Iii27», tol'harles A.Shernmnela/ 114,283.41
'*In No. 1131, to Edward ll.caililun, the snm of 23,450.00
"with interi'St on each of the above-mentioned same, to be computed at
4 per cent, from November 10, 1863.
'< The several judgiueuts to be entered by the clerk in the
usual form.
<' Kayneb, J., dissenting as to the principle apon which net
freight is allowed."
<*Buck and Spofiford and sundry other claim-
CaM of the thipt ants r. The United States,* Nos, 400, 407,
"ffigWander" and ^^ ^^ ^^^ ^^. ^^o 597 593 599 ^qq ^j
**Jabei Snow." J ^^ ^
and 650.
*< In the matter of the destruction of the ships Highlander and
Jabez ISnotc.
** Where a vessel has sailed under a charter party with cargo aboard she
is entitled, under the act of Congress of 23d Jnne 1874, to net freight
for tlio whole voyage, in accordance with the terms of the charter,
though destroyed by an insurgent cruiser when but one day out.
*' Where dentroyecl while sailing in ballast, under charter, to take in cargo
at her port of iirst destination, to be carrie<l thence to a port of final
destination, she in entitled to net freight on the cargo which she was
thus to havr taken on board.
''Where destroyed while sailing under one charter to deliver, at a desig-
nated port, cargo on board, and to bring other cargo home, she is
entitled to net freight for the round trip.
''Where destroyed while sailing under two distinct and independent
charters, to carry under the iirst cargo to an intermediate port, and
under the second to carry other cargo to a port more distant, she is
entitled to net freight under each charter, though destroyed before
the fuUillment of the tirst, if she has made it satisfactorily to appe:ir
by proper proof or necessary legal ]>re8umption that she entered fairly
at the same time on the commencement and prosecution of both
voyages.
"STATEMENT OF THE CASE.
"A« to Ike ^Highlander :^
"On the 7tli March 1863 a charter party was entered into
between the captain and Messrs. Hyde & Jones, of London,
that the Highlander should sail to Akyab, Kangoon, or Bas-
sein (with liberty to make an intermediate voyage) for a cargo
1 Davis'H Hcport of the Proceedings of the first Alabama claims conrt, p. 78.
MEASURE OF DAMAGES. 4273
of rice, and after loading should proceed to Oork or Falmoatb
for orders. The Highlander j after making the intermediate
voyage allowed by the charter party, was proceeding to
Akyab to load, when, on the 16th December 1863 she was
captared and burned by the Alabama. The owners claimed
net freight under the Akyab or rice charter — viz, gross freight
less all expenses which would have been incurred by the
owners if the vessel had continued her voyage and delivered
the cargo of rice in accordance with the charter party.
"A« to the ^Jahez 8now:^
<<0n the 25th February 1863 the captain signed a charter
party providing that the vessel should sail from Liverpool on
or before the 3l8t March 1863 to Montevideo; that as soon
as discharged at that port she should proceed to Oallao, there
report to the agents of the Government of Peru, and after ful-
filling certain provisions of the charter party and loading her
cargo should sail from Oallao to Havre direct.
'<On the same day the captain entered into another charter
with different parties, providing that the ship should, with <all
convenient speed,' proceed to Cardiff, there load a cargo of
coal, and deliver the same in Montevideo.
<^At the time these charter parties were signed the vessel
was lying in the port of Liverpool. From Liverpool she pro-
ceeded to Cardiff, loaded the cargo of coal, and sailed for Mon-
tevideo. On the 29th May 1863, before reaching that port,
the vessel and cargo were destroyed.
"The owners of the vessel claimed the net freight under
both charters — viz, the gross freight under the two charters
less all expenses that would have been incurred if the two
cargoes had been delivered.
"^« to the ^Sonora:^^
"The complainants, owners of the vessel, entered into a
charter party while the ship was on a voyage from New York
to Melbourne.* By this charter party the. ship was bound,
upon the discharge of her cargo at Melbourne, to proceed from
that place to Akyab, in British India, for a cargo, either
directly or after an intermediate voyage to another x>ort in
< ''The argntneDt of counsel for the complainants in Gushing et ah v. The
United States (case of the Sonora), No. 288, having been extensively
referred to by counsel for the complainants and for the respondent, has
also been reported, although the case did not come on for trial with the
cases of Buck et aV*
4274 INTERNATIONAL ARBITRATIONS.
Australia or the Ohina aeas, and in case of such iiitermediato
voyage to leave her last i)ort for Akyab on or before December
1, ld(>3. She made an intermediate voyage to Hongkong, left
that port for Akyab before December 1, 1863, and was burned
by the Alabamu in the Straits of Malacca on the 2Gth day of
Dectember, 1863.
<< Besides the loss of vessel, ontfits, etc., the owners claimed
the net freight on the Akyab charter.
<^Mr. O. C. Beaman, jr., for the complainant.
'^The freight claimeii does not come under the definition ot
4)rospective' or < unearned,' as given by the court in the case
of Hnbbell r. The United States.
<<The court allowed in tliat case net fireight for the whole
voyage when the cargo was on board. The net freight now
claimed does not differ from that then allowed in being pros-
pective or unearned.
*'Tlie word 'prospective,' as applied to freights, does not
relate to the fact of it^ being on boanl, but to its dependence
upon an exi)ected usual course of business or upon an absolute
contrac^t.
<' According to the ^ principles of law' an award can be made
for net freight in these eases:
'^a. In cases of in sura nee upon a policy on freight the owner
can insure and recover the gross freight on a voyage upon
which the ship hiis entered, even though the cargo is not on
board. (Aruould on Insurance, edition of 1872, pp. 30, 31,
and 304.)
"/>. In cases of general average, the owner of the vessel is
bound to contribute on the value of his vessel and the amount
of his net freight, under the charter on which he has cargo on
board, and under t\w charter upon which he has entered,
although he has not yet received the cargo. (Tlie brig il/az-y,
1 Spra<rue, p. 17; Dixon on Average, ]). 187.)
'*(*. Freight has bc^en allowed a neutral vessel with cargo on
board, but when she had not sailed from the port where she
receiv(»d her car<io. (The Catharina Elizabeth^ 1810 5 1 Aetoii,
English Adniiialty Uep. 309.)
"There is nothinfr to show that net freight as now claimed
would not be allowed a neutral vessel captured under the cir-
cumstances in which the Riffhlander and Jabez Snotc were
destroyed.
^ ^Ui. In cases of collisions and other marine torts, freights are
MEASURE OF DAMAGES. 4275
allowed against a wrongdoer to the extent claimed in the
cases now under consideration. (Statate 53 Oeorge III., A. D.
1813, p. 792; 17 and 18 Victoria, A. D. 1854, p. 595; 25 and 26
Victoria, A. D. 1862, p. 305; 9 U. S. Statutes at Large, p. 635;
Allen V. McKay, Sprague, p. 219; the South 8ea^ 1856,
(Swabey's Beports, p. 141); Case of the OrpheuSy 1871, 3 Law
Keports (Admiralty), p. 308; the Canaday 1861, 1 Lushiugton,
p. 586).
<< Messrs. Paine and Orafton for the complainants (owners
ot the Sonara).
'<!. According to the statute creating the court, it is to
decide upon the amount and validity of claims presented in
conformity with the provisions of the act, according to the
principles of law and the merits of the several cases.
'< Causes within the jurisdiction of the court must have
originated in a marine tort; therefore the court should look to
cases of collision and capture for the establishment of the
^principles of law- which are to control this case.
<< 1. In cases of collision as against the owner of the offending
ship, the owner of the injured ship, if without fault, is entitled
to her net freight, whether she is or not totally lost; provided
the performance of the charter party is defeated by the
collision.
<< As against the captain of the offending ship the rule is
the same, unless his misconduct is such as to warrant an award
of exemplary or vindictive damages.
<* As between the owner of the injured ship and the owner
of her cargo, the question of liability dei)ends wholly upon
the relative responsibility of these parties for the failure of
their contract. (The Gazelle, 2 W. Rob. 279; Williamson v.
Barrett, 13 How. 101; The Canada, 1 Lushington, 586; The
Ann Caroline^ 2 Wall, 550; The Rebecca, 1 Blatch. & H., 347
The Cayuga, 14 Wall. 270; The Heroine, 1 Benedict, 226
Egbert r. The Baltimore and Ohio B. B. Co., 2 Benedict, 225
The Farorita, 18 Wall. 598.)
<^2. In cases of capture of neutral ships the following are
the rules of damages applicable to freights, both in England
and the United States:
^^ As against the captor the owner of the captured ship, if
without fault, is entitled to her full freight, whether she is or
is not totally lost, provided the performance of the charter
party is defeated by the capture.
5627— VOL. 4 66
4276 INTERNATIONAL ABBITRATION8.
<* Ah aj^aiiiHt the owner of neutral catf^o, in ense of total Ioas
of lM)th ship aud cargo, without the fault of either, there is no
liability for freight in favor of the owner of the ship, because
if the cargo fails the ship, so also does the shij) fail the cargo.
'^ As against the owner of neutral cargo, in ease of total loss
of ship alone, without fault of ship or c^rgo, there is no liability
for freight in favor of the owner of the ship, because thec^irgo
waits in vain for the ship to perform the charter party.
<< In case of detention or partial loss the liability, as between
owners of ship and cargo, will embrace full freight, pro rata
freight, or no freight at all, according to the relative resiionsi-
bility of the parties for the failure of their contract. (The
Pearl (18(»4), 5 0. liob. 109, Am. ed.; The Copenhagenj 1 C.
Kob. Adm. 281); The Race-Horse, 3 O. Bob. Adm. 101; The
Lucy J :\ 0. Rob. Adm. 208; Der. Mohr, 4 0. Hob. Adm. 314;
The Anna Catharine, 6 0. Rob. Adm. 10; The Lively, 1 Gall.
3ir>; The Commercen, 1 Wheat. 382; The Nuestra JSeitora de
/iVf//a, IVWall. 30.)
'<3. The reason for including the net freight of the charter
party in the award of damages in the case now before the
court is vastly stronger than in the case of a collision, or in
the case of a capture of a neutral ship by a belligerent.
"II. The statute forbids allowances for —
"1. (iross freights.
"2. Unearned freights.
"3. Prospective freights, gains, or advantages.
**(Jross freight is the entire amount of freight money to be
received. (The Heroine, 1 Benedict, 226.)
" The expression 'unearned freight' applies to cases where
a chartered ship, not having begun to work under her charter
party, has not begun to earn her freight, and to an unchartered
ship which lias not conimcnced the projec*te<l voyage; but it
does not apply to a case where a ship hns begun to earn her
freight — has partly earned it. Unearned freight, in the sense
of the statute, is not freight partly unearned, but it is freight
wholly unearned. (The Hamilton, 3 C. Rob. 107; The Martha.
3 C. Rob. 107.)
" The clause as to ' prospective profits, freights, gains, or
advantages' refers to matters purely speculative, and means
the prolits, freights, gains, or advantages of a prospective, not
of an actual voyage : of a voyage projected but not commenced.
<' 111. The claimants are entitled to the entire net freight
MEASURE OF DAMAOB& 4277
ander the charter party, for at the time of capture the vessel
was working ander it. There was no element of adventare or
speealation in the voyage.
^< A ship is earning freight from the hoar she starts after her
cargo. (The GanadUj 1 Lashington, 586^ The Argo^ 1 Spink,
375; The 3/ary, 1 Sprague, 17.)
*' Mr. J. A. J. Greswell and Mr. Frank W. Hackett for the
respondent :
'^In the case of the Jabez Snow nothing had been done
toward earning the Oallao charter that woald not have been
done had there been no sach charter. The vessel was de-
stroyed while prosecuting the Montevideo charter, therefore
the claimants are entitled to no indemnity on accoant of the
Gallao charter. (Opinion of the court in Hubbell v. The United
States.)
^< Collision cases afford no analogy for the estimate of the
court in cases like the one at bar.
<<The court keeps within the limit of the direct result of the
damage caused by the cruisers. (Hubbell et al. v. The United
States, ante.) The attitude of a claimant in this court is not
that of an injured person suing a wrongdoer.
^' In cases of capture of vessels under charter, but without
cargo, net freights would not be allowed. (Abbott on Ship-
ping, 470; The Copenhagen^ 1 C. Itob. Adm. 289; The Frances^
8 Cranch, 418; Wakey v. Dixon, 2 Bos. & Pull. 321; The
Nathaniel Hooper j 3 Sumn. 642; The Sodete^ 9 Cranch, 209.)
^< The decisions of the court must be made in accordance
with the statute creating it, and the single question for this
tribunal under that act is, admitting the claim to be a valid
one, how much loss or damage did the claimant actually suffer
for which this statute gives power to award indemnity f This
court has not the full and peculiar powers of a court of prize,
and the express prohibitions of the act creating it exclude any
claim for freight made under charter parties where the cargo
is not on board.
^^ The freight claimed in the case at bar is ^ unearned ' and
' prospective,' for a vessel does not really enter u|>on the work
of earning freight until the cargo is actually or constructively
in her possession, and freight to be earned is an uncertain
profit. (Code de ( 'omraerce, article 347 ; Emerigou on Insur-
ance, pp. 181,713; Meredith's translation of Emerigon, ed.
1850, p. 713, note; 13 East. 300; Bouvier's Law Diet.; Smith's
A
4278 INTEKNATIONAL ARBITBATIONS.
Mercantile Law, 283; Abbott on ShippiDg, 405; EmerigOD, p.
178; Papers relating to the Treaty of Wasliing^D, IV. 53.
" PoBTERy J., delivered the opinion of the court:
<' In the ease of the ship Winged Racer ^ we were called to
consider, amoug other subjects, a claim for the loss of freight
After a protracted argument by eminent coansel, we reached
in that case conclusions which were and are satisfactory to the
minds of a majority of the court. In the cases above meu-
tioued some new phases of the question, growing out of a
diflerent state of facts, were presented. This led the counsel
of the government to insist on re- arguing. the original questious
decided in the Winged Racer; and, specially desiring to be
right on a point involving so large a part of the money paid
by Great Britain, we accorded this privilege both to them and
to the counsel of various claimants. I am now to state the
views entertained by the court, after listening to these elab-
orate and learned arguments, and then to apply the principles
we have adopted to the solution of the questious presented in
the cases of the Highlander and the Jahez Snow,
'' The Government of the United States presented at Geneva
a large claim for the loss of freights. The British exi)erts
launclu'd pointed and severe criticisms at the claim made for
gross freights, but they could not deny the soundness of the
claim for net freights, if the conduct of Great Britain had
rendered lier liable for the acts complained of by the United
States. In tlie award made in our favor, this principle was
set forth as one of the conclusions of the tribunal, that *in
order to arrive at an equitable compensation for the damages
which have been sustained, it is necessary to set aside all
double claims for the same losses and all claims for gross
freights, so far as they exceed net freights.'
'* When the act of 23d June 1874 was framed, Congress, fol-
lowing out this principle, gave to this court the following
direction (section 12): 'And in no case shall any claim be
admitted or allowed for, or in respect to, unearueil freights,
gross freights, prospective profits, freights, gains, or advan-
tages.' Tlie term 'prospective,' it will be observed, is predi-
cated liere, not only o^ profits^ to which it stands in juxtaposi-
tion, but also of freights^ gains, or advantages. We are not to
allow a claim for unearned freights, gross freights, or pros-
pective freights; thus, by excluding all other kinds of freight,
permitting, and indeed requiring, us to allow claims for net
MEASURE OF DAMAGES. 4279
fireight. That is, from the freight which a vessel, when de-
stroyed, was engaged in earning, must be deducted the
expenses which she would thereafter have incurred if the
voyage had been successfully accomplished. By the immedi-
ately preceding section of the act we are required to decide
upon the amount and validity of such claims, not only in con-
formity to the provisions of the statute, but according to the
principles of law. We are to exclude profits, freights, and
gains which were prospective and freights which were un-
earned, and we are to do this not in some arbitrary way
dictated by our own sense of justice, but according to the
principles of jurisprudence as established by courts of law and
adopted by the maritime nations of the world. We know, and
we have known from the beginning, the importance of reach-
ing a sound conclusion on the question thus arising both out
of the treaty and the statute. During the argument we have
been properly reminded of the influence which our decision
may hereafter exercise on the public interests. It is said that
the United States exi>ects to carry out in the future, as she
has in the past, the doctrine of neutrality. It is reasonable
that the principles adopted in the distribution of the money
awarded at Geneva should be applied to her, if she should
ever be held responsible for violating those important rules
established by the sixth article of the treaty, defining the duties
of a neutral government in preventing the fitting out, within
its jurisdiction, of vessels intended to carry on war against a
power with which it is at peace.
"What, then, is < prospective freight,' as employed in the
award and in the statute! A plain illustration may supply
the answer. The owner of a ship at Philadelphia, finding her
out of employment, concludes that if he were at the Ghiucha
Islands he would be sure of a profitable cargo to Liverpool or
New York. He proceeds, without any contract, written or
verbal, equips his ship, sets sail, is captured by the Alabamaj
and sees his own ship sent to the bottom. He files his claim
in this court, shows the loss of the vessel, proves her tonnage
and the customary freight, and offers the testimony of shippers
in Gallao, who state that if she had arrived there they would
have supplied a cargo equal to the carrying capacity of the
ship. He exhibits his calculation showing the necessary de-
ductions from the gross freight and asks the payment of his
daim. We decline to allow it, and tell him this was what the
/
4280 INTERNATIONAL ARBITRATIONS.
award meant when it declared that ' prospective eamiDgs can
not proi>er]y be made the subject of compensation ; ' and this
is what the act of Congress meant when it provided that a
claim should not be allowed for or in respect to < prospective
profits, freights, gains, or advantages.' Having thus foand a
distinct subject-matter to which this portion of the statute is
applicable, we ought, by well-settled rules of interpretation, to
rest content that we have ascertiiined the kind of profits which
Congress meant to define by the term 'prospective.'
"What are < unearned freights,' as employed in the act!
What do these terms, so unusual in the language of judges,
shippers, carriers, and underwriters, require us to exclude!
By forbidding the allowance of unearned freights it was cer-
tainly not intended to allow only freights folly earned.
Freight is fully earned in the judicial as well as popular
sense when the vessel has reached her port of destination and
the cargo has been delivered; a place in which she would not
be in much danger of destruction at the hands of an insurgent
cruiser, if so destroyed, the question of freight could not
have arisen at all, for her charterers would then have been her
debtors and the value of the vessel only would have been lost
to her owners. It is impossible to suppose that Congress
could have put so frivolous a thing into a serious statute. It
is just as clear that freights wholly unearned could not have
been intended; that is, where no expenses had been incurred,
no stores supplied, no cargo taken on board, nothing done by
shipper or owner toward the commencement of a voyage.
Here, again, the vessel would have been found in her dock
and out of the reach of the losses of which the statute treats.
Even if she were not, her case is effectually provided for by
forbidding any allowance for prospective freights. The pro-
vision respecting 'unearned freights' was evidently intended
to enibra<!e something diff'erent from that of the inhibition of
prospective gains and t^ have some practical effect on the
distribution of the money in hand. Let it be observed, then,
that between these extremes — of freight wholly earned and
freight wholly unearned — there is an ample territory in which
judicial investigation has gone on from the dawn of commerce
to the present hour, and the results are found along the whole
track of the commercial law. A ship is made ready for sea, a
charter party more or less formal is executed, her cargo is
shipped, and she starts on her voyage. She has not then
MEASURE OF DAMAGES. 4281
earned her freight, and on the shipper or charterer she has no
legal claim until after the lapse of many months and the
endurance of many perils. But her owner has spent time and
labor in fitting her out, has supplied the necessary stores,
advanceil the wages of the crew, and subjected her to the
largest risk to which property is ever subjected, or paid to
others the required compensation for assuming such risk.
Can it be maintained that her freight is unearned, in the large
and general sense in which this term is used in the statute —
unearned, without qualification — wholly unearned f Can it be
denied that some part of it has been earned f Not as against
the shipper, if he has done nothing to change the contract, but
even as against liim, if he has interrupted the voyage, and
certainly as against everyone who willfully or carelessly stops
her progress, flere the decisions, European and American,
have a uniformity scarcely to be met with in any other depart-
ment of the law.
'< The ship Cambodia sailed under charter from Bombay in
ballast for Howlands Island, intending to call at a port in New
Zealand for water, and, having got on shore on the coast of
New Zealand, was so damaged that she was obliged to aban-
don her voyage. Lord C. J. Gockburn (afterward one of the
arbitrators at Geneva) held that, as the ship had sailed with
the sole object of going to Howlands Island to earn freight
thence to the United Kingdom, the interest in the freight had
commenced, although not a pound of the cargo was on board
when she struck. (Barber v. Flemming, 5 Law Reports, 59,
Queeu'S Bench Cases.) True, this was an action on a contract
of marine insurance, created by parties who could make their
own terms, and we ought to look for prectedents arising out-
side of the law of contracts altogether. Take, then, the case
of a general average arising from the jettison of goods for the
common safety of ship and cargo. Here Mr. Lowndes, citing
Williams against The London Assurance Company (1 M. and
S. 318), states the rule in these terms: 'When a ship is char-
tered to fetch or caiTy a cargo belonging to the charterer, the
freight under the charter must contribute to the general aver-
age, whether or not the cargo is on board the ship at the time
of the general average act, since the loss qf the chartered
ship, whether Ijiden or not, would deprive the shipowner of his
expected freight.' (Lowndes on General Average, 236.) In
the case of the brig Maryj Judge Sprague carried out the doc-
4282 INTEHKATIOKAL ARBITRATIONS.
trine by boldiug that wbere, by a charter party, a g^ross sam,
not divisible, was to be paid as freight for a voyage oat and
home, the principal object of the voyage being to obtain a
return cargo, and a general average occurred ou the oatward
passage, when the ship was sailing in ballast, the whole freight
for the round voyage must contribute. (I Spragae's Decisions,
17.) Turning to cases of salvage, we find the same rule to
prevail. (The Nathaniel Hooper^ 3 Sumner, 542.) It is true
that Mr. Benecke differs from Sir William Scott in the view
taken by the latter in the case of the Pro^e«« (Edwards, 210),
that where a ship goes out under a charter, to proceed to her
point of destination, in biillast, and to receive her freight only
u}>on her return cargo, the court is not in the habit of di\adiug
the salvage (in which lie is sustained by the case of the Dor-
othy FoHter, 6 G. liobinson, 88) ; but it is sufficient to observe,
respecting this difference of opinion, that no man of his age
was of higher authority on maritime law than the judge who
pronounced the judgment in that case. In the cases of colli-
sion of vessels the same doctrine prevails. Even the case of the
ISouth 8m v. The Clara Symes (Swabey's Reports, 141) is really
in harmony with the other cases, for although the claim for
freight was there rejected, and the owner of the injni-ed ves-
Hcl was directed to pay the costs attending the claim which
he had made for freight, yet this was because of the doubt that
arose from the character of the vessel, whether the master
could have carried out the charter party, even had the collision
not occurred. The decision of Dr. Lushington in the Gazelle
(2 W. Robinson, 279) and in the Argo (1 Spink, 375); the re-
j)ort of the registrar and merchants in the Canada (1 Lush-
ington, 58(>), made under Dr. Lushington's own eye; the deci-
sion of Dr. Phillimore in the Orphem (3 Law Reports, 308,
Admiralty), where the cargo wtis not on board at the time of
the collision; the opinions of several of our eminent admiralty
judges in America — Bark Heroine [I Benedict, 226); Egbert
against the B. & O. R. R. Co. (2 Benedict, 225), and the deci
sions of the Supreme Court of the United States in William-
son against Barrett (13 Howard, 101), the Cayuga (14 Wallace,
270), the Favorita (18 Wallace, 598) — have placed on a founda
tion too solid to, be shaken the doctrine that the owner of a
ship injured by a collision, if not in fault, is entitled to recover
her net freight from the owner of the offending ship, if the
performance of the charter party be prevented by the oollision.
MEASUBE OF DAMAGES. 4283
<' Undoabtedly the closest analogies to the canes in hand are
found in those of the captare of vessels as prize of war. It is
trae that Great Britain did not admit her liability as a wrong-
doer for the acts of the insurgent cruisers, and, indeed, by the
first article of the treaty, diHclainied it, but having negligently
permitted the equipmeut in her own ports of vessels which
could have had no other object than the destruction of our
ships, she was placed by the award in the legal attitude of
having wrongfully captured them. There are in the books few
cases of the destruction of vessels taken as prize of war, for
the reason, chiefly, that they are too valuable to the captor to
be destroyed. One of the few is the case of Der Mohr (4 0.
Kob. 315), which was lost by the negligence of the prize mas-
ter, an officer of the British navy, while being taken into port,
and the captors were held liable both for the ship and th(^
freight, but relieved from liability by act of Parliament. In
the Copenhagen (1 G. Hob. 289), seized in a British port which
she had entered in distress to make repairs, Sir William Scott,
in treating of the question whether freight was due from the
owner of the cargo to the owners of the ship for the whole
voyage or only pro rata itineris^ thus speaks: *With respect
to the freight, some is admitted to be due, as the ship has
brought her cargo from Smyrna through much the most con-
siderable part of the voyage. But it is said that in matters of
prize the whole freight is always given, and for this reason,
because capture is considerecl as delivery, and a captured ves-
sel Ccirns her whole freight. I have already said that this is
not merely or originally a matter of prize; the ship was not
brought in as such; she came in first from distress, and was
afterward put upon the proof of her character. It is a case of
a mixed nature, and the maxim that capture is delivery is not
to be taken in the general way in which it is laid down. It
is by no means true excerpt when the captor succeeds fully to
the rights of the enemy and represents him as to those rights.
If a neutral vessel having enemy's goods is taken, the captor
pays the whole freight, because he represents the enemy by
possessing himself of the enemy's goods Jtir^ helli^ and although
the whole freight has not been earned by the completion of the
voyage, yet as the captor, by his act of seizure, has prevented
its completion, his seizure shall operate to the same effect as an
actual delivery of the goods to the consignee, and shall sub-
ject him to the payment of the full freight.' The cases of the
i
4284 INTERNATIONAL ABBITKATIOKS.
Martha (3 C. Bob. 107), the Hamilton (3 G. Bob. 107), and the
Anna Caiherina (6 G. Bob. 10), reoog^ize the same doctrine.
In the argument before us it was assumed that in no case of
capture had freight been allowed where the cargo was not on
board at the time of the capture; but the Progress (Edwards's
Admiralty Bi^}>oits, 210) seems to present such a case. That
vessel having sailed from England to OiK>rto, in ballast, under
a charter party for an entire voyage out and home, and having
performed the outward voyage, was captured by the French
in that port and recaptured by the British and Portuguese
army under Wellington before she had commenced her home-
ward voyage. After the capture she had been unladen; on
the recapture her cargo was in warehouse on shore. Salvage
was allowed on the whole freight out and home. By the deci-
sion in the Catharina Eliz€ibeth (1 Acton's Admiralty Beports,
309), freight was allowed to a neutral vessel which had not
actually sailed, though her cargo was on board. It must be
admitted that the American decisions have not yet satisfac-
torily established here the English rule, and some of them are
adverse to it: The Amiable Nancy (3 Wheaton, 546); the
Anna Maria (2 Wheutou, 327); the Charming Betsey (2 Cranch,
64). The i^ovUte (9 Cranch, 209) was the case of a neutral
vessel sailing under charter party to Amelia Island with cargo
freight tree, where she was to take on board such cargo as
might Ih' tendered to her, and while thus carrying British goo<ls
was ciiptured by a naval vessel of the United States, then at
war with (ireat Britain, and brought into the district of
Oeorgia, wh(Te the cargo was condemned as enemy's property.
Chief Justice Marshall certainly held the two voyages to be
distinct, probably much intluenced by the division made of the
freight, which as to one voyage was to be free, but payable
as to the other. 1 n the comparatively recent case of the Snen'
tra Senora de Rajla (17 Wall. 30), a Spanish steamer seized in
1861 as prize of war at Port Royal, in which a huge sum was
allowed to the owner for the use of the vessel, there is some
recognition of the English rule, which must seem to ever^-one
who carefully examines the subject much more consonant to
the whole system of the law of marine torts.
^^ It certainly follows from this discussion that in the cases
before us the allowance of freight pro rata itineris peravti^ so
strongly insisted on by the counsel for the Government, is out
of the question.
^U. There is nothing in the act of Congress to justify it.
MEASURE OF DAMAGES. 4285
We are not required to decide a case where the freight was
wholly earned, or one in which it was wholly aneariied, for
neither the one case nor the other, as we have seen, coald have
arisen out of the depredations of the insurgent cruisers. Such
acts came too soon for the one and too late for the other. We
are called upon to decide cases occupying ground intermediate
between these extremes. The statute, therefore, wisely said
nothing about apportioning the freight.
^< 2. We could not undertake to determine upon and allow
freight j^ro rata itineris where it had been partly earned and
partly unearned without violating those principles of law
which Congress specially cautioned us to observe. Left tlius
untrammeled by the statute in respect to the measure of
freight due, we had either to take ground in opposition to
what the most enlightened publicists have written on this sub-
ject, and the most distinguished jurists have approved, or to
adopt principles which have thus acquired the sanction of the
jurisprudence of the maritime world. It required little sagac-
ity and less courage to do the latter.
<*3. If we had undertaken to split the freight into fractions
and to parcel it out we should have failed in everything except
doing injustice. A practical eye will readily see this. Sup-
pose tlie ordinary voyage of a sailing vessel to be thirty days.
In ten days from the time of commencing to put cargo on
board she has completed, it may be, four-fifths of her entire
earnings. Why! The cost of loading and payment of wages
to officers and men, the supply of stores, and the other smaller
and incidental but inevitable expenses are the bulk of the
cost of earning the entire freight. All she then requires are
those propitious influences of the elements for which she is
dependent, not on the ]K>wer of man, but on the favor of
heaven. Divide the whole freight thus begun to be earned
a(;conling to the number of days out, or by any other rule, and
not in one case out of a thousand would justice be done.
Deduct that which one of these vessels, if not destroyed,
must have expended between the point of her actual destruc-
tion and the port of destination (generally only the expenses
of maintaining the crew, paying the port charges, and deliver-
ing the cargo), and you leave her owner just where every inno-
cent man, whose person or property is attacked in violation
of law, ought by the law to be left; that is, as nearly sound
and whole as if he had not been struck.
^^ What, then, is the practical result of these doctrines in the
4286 INTEBNATIONAL ARBITBATI0N8.
cases before ueT Wh^re a vessel has sailed under a cliarter
party with cargo on board she is entitled to net fireifffat for tbe
whole voyage iu accordance with tbe terms of the charter,
tbongb destroyed when but one day out. Where sbe was
destroyed while sailing in ballast under charter to take in
cargo at her port of first destination, t{i be carried thence to
a port of final destination, sbe is entitled to net freight on tbe
cargo which she was thus to have taken on board. Where
destroyed while sailing under one charter to deliver, at a
designated port, cargo on board, and to bring other cargo
home, sbe is entitled to net freight for tbe round trip. W^here
destroyed while sailing under two distinct and independent
charters to carry, under the first, cargo to an intermediate
port, and under tlie second, to carry other cargo to a port
more distant, she is entitled to net freight under each charter,
though destroyed before the fulGUnient of the first, if she has
made it satisl'actorily to api>ear by proper proof or uecessary
legal presnmptiou that she entered fairly at the same time on
the commencement and prosecution of both voyages.
"On theseprinciplea we decided, in -June last, the case of the
Soiiora, Slie sailed from Kew York to Melbourne, and sbe was
thence to sail to Akyab, in British India, to take on a cargo of
rice and proceed tfl one of several designated European ports.
The charter permitted an intermediate voyage in the China
seas. Having made such an in t«rmeiliate voyage t« Hong-
kong, she left that port lor Akyab, and was destroyed by the
AUihama in the straits of Malacca. In the Judgment entered
in favor of Iter owners we allowed net freiglit for the cargo not
on board at the time of her destruction. So, also, in the case
of tlie Hmma -lane, decided during the same month. The case of
the Votiinionireallli, argueil during the present month, affords
an illustration of the a])i>liciition of tlie same prinoiple. Sbe
sailed from New York to Han Francisco witli a large freight
list, and when about twenty-eight days out was destroyed by
the Fhriihi. Afiei' she had sailed, and before receiving infor-
mation of her destruction, her owners executed a charier bind-
hig her to proceed from San Francisco to, the Ghincba Islands
to take on guano deliverable at Hamburg. She had not
sailed under the charter for the Chincha Islands. She had
done nothing whatever under it. Her officers did not even
hear of it until after her destruction. As to that charter, her
gains were prospective, which the award declares 'can not
MEARURE OF DAMAGES. 4287
properly be made the subject of compensation, inasmach as
they depend in their uatare upon future and uncertain contin-
gencies.' We accordingly disallowed to her freight under that
charter, but admitted her right to net freight on the voyage
to San Francisco. We could not have done otherwise.
^*In the cases of the Highlander and the Jabez SnoWy now
before us, we have as little difficulty in allowing the freight.
The Highlander was to proceed under charter to Akyab,
Rangoon, or Bassein (with the privilege of an intermediate
voyage to a port in India or China), to take on at one of those
ports rice deliverable at Cork or Falmouth. She had per-
formed the intermediate voyage, and was proceeding in ballast
to Akyab for cargo when she was destroyed by the Alabama.
The Jabez Snow carried with her two charters, under one of
which she sailed from Cardiff with coal for Montevideo, and
by the other she was to proceed thence to Callao to take on
guano deliverable at Havre. She was destroyed by the Ala-
5ama, with the coal on board, before reaching Montevideo. So
far as we can judge, after a careful scrutiny of all the testi-
mony before us, each of these vessels, at the time of her
destruction, was proceeding in good faith in the actual execu-
tion of the contracts which she had thus lawfully assumed. We
know of nothing more which either of them could have done
in the prosecution of the respective voyages tlius commenced
and suddenly terminated by the act of the most successful of
the insurgent cruisers. We accordingly allow to each of them
net freight on the cargo which she was thus proceeding to take
on board when destroyed. While we do not agree with the
claimants resi)ecting the amounts which they are entitled to
claim, these are the principles of law on which we have reached
the conclusions embodied in the judgments about to be entered.
"Raynob, J., dissenting."
*< Henry P. Haven ' and Charles A.Williams,
ProtpectiTe proilti, executors, et al. v. The United States, 992:
img tt, gttuu, or QQmpij|i„ants were the owners of the bark
Alert J which was destroyed by the Alabama on
the 9th September, while on a voyage to Kerguelun Land, other-
wise called Desolation Island, to procure a cargo of sea-elephant
oil. It appeared that this oil was imi)orted almost exclusively
from this and Hunl's Island, and the entire business was (car-
ried on by the complainants; that in prosecuting these voyages
> Davis's Report, First Alabama Claims Court, 18.
4288 INTERNATIONAL ARBITBATION8.
a large ship and one or more schooners were usually employed,
and it was alleged that no ship or bark could procure a cargo
of this oil without having a schooner to assist her. The
schooner hJ. R. Sawyer was sent out as a compauion to the
Alertj and arrived in safety at her destinatioD, where it was
alleged large numbers of sea elephants were found, aud a cargo
of oil coultl have been taken had the Alert arrived. As sooo
as the owners heard of the destraction of the Alert they fitted
out the Arab^ a smaller vessel, and sent her to Desolation
Island, where she procured a cargo of oil. The Alerij before
her destruction, had taken two sperm whales and had the oil
on board.
<<The complainants in this case claimed their share (seven
forty-eighths) of the bark, cargo, and outfits, and seven forty-
eighths of the difference between the cargo brought home by
the Arab and that which the Alert would have procured had
she reached Desolation Island.
''The court in entering judgment delivered no opinion, bat
by a comparison of amounts it appears that judgment was
entered for tlie value of the vessel, and the oil actually ou
board at the time of destruction, and that no allowance was
made for the i)robable catch of sea elephants.
'^In (calculating the value of the sperm oil on board, the
market rate on the day when it would have arrived home iu
the usual course of business seems to have been taken as the
measure of damage."
"Charles L. Colby v. The United States,
Colby's Caw. No. 1187,* and sundry other claims: These
claims were brought by the owners of the ship
(Jommonwealtli^ destroyed by the Alabamdj for the value of
the vessel, outfits, and freight.
"The Common trealth sailed from New York for San Francisco
ou the 19th of March 1863, laden with a general cargo. On
the 17th of April following she was destroyed.
*'On the 15th of April 1863 a charter party was entered into
between the owners of the vessel and the agents of the Gov-
ernment of Peru, agreeing that the vessel should proceed from
San Fiaiicisco to Callao, Peru; thence, on receipt of orders, to
the Chincha Islands for a cargo of guano; thence to Hamburg
or Kotterdain, calling at Cowes for orders. The complainants
claimed net freight on this charter party, which a comparison
' Davis's Report, 18.
MEASURE OF DAMAGES. 4289
of the amount claimed with the amount awarded by the court
shows was not allowed."
"George B. Upton, jr., et al. v. The United
Upton's Case. States, No. 960:^ The complainants were the
owners of the ship Noraj her tackle, apparel,
outfit, and freight.
"The Nora sailed from Liverpool for Calcutta about Febru-
ary 14, 1863, and on the 27 th March was destroyed by the
Alabama. The value of the vessel was claimed as increased
by her vicinity to a point where vessels were in demand. A
claim was also made for services and risk of money.
"The judgment in the case was for $74,603.10, with the legal
interest from the date of destruction.
"No opinion was delivered in the case, but a comparison of
amounts shows that the court did not allow the claim for
enhanced value or for services or risk of money.
"Sixty thousand dollars, gold, was stated by the complain-
ants as the value of the Nora when new. This amount reduced
to currency, with expenses at Liverpool and freight added, and
insurance received subtracted, gives approximately the judg-
ment rendered.'^
"Lorenzo F. Fisler v. The United States,
Filler's Caae. No. 404 : The complainant, a photographer, on
his way to China in the ship Talisman^ was
captured by the Alahanuij and his clothing, stock in trade,
etc., were destroyed.
"The complainant showed that, at the time of his capture,
he hud an agreement with a firm in China, the conditions of
which were that, in return for his professional services, he was
to receive a salary of one hundred Mexican dollars per month,
and his expenses paid; or In lieu thereof, one-fourth share in
the profits of their business; that, immediately upon his arri-
val at Shanghai, thirteen months after the date when the
Talisman would have reached her destination, had she not
been destroyed, he entered into the employment of that firm,
with a compensation eiiual to one-fourth of the profits. It wius
alleged that on this basis, during the thirteen months he was
delayed, his share of the profits would have been about $2,600
gold.
"No opinion was delivered by the court. The comi)lainant
proved $1,180 gold as the value of his'goo<ls actually destroyed.
3Davis'8Report,18.
r
4290 INTERNATIONAL ARBITRATIONS.
Adding to this Hum the preminm on gold on the clay when the
TaliMMan was destroyed, we have $1,722.80, the auiount for
which the court entered jndgmeiit. It api^ears, therefore, that
the claim for coini>ensation for delay in falfilling^ his contract
was not allowed.'^
^^The complainants in case No. 1942, Wil-
H«tfr«ighti. liam Johnston Taylor et ah r. The United
States,' were the owners of the steamship
Ekvtriv Sparky which sailed July 9, 1864, on a voyage from
New York to New Orleans and return under charter of the
New York Mail Steamship Company. The vessel was de-
8troye<l by the Florida on the 10th July, 18G4. The complaiu-
ants recovered the value of the vessel and outwaid freight in
another i>etition and now claimed the value of the return
freight and passage money, it being shown that the vessel was
engagcKl full of passengers and freight for the return trip by
the agent at New Orleans of the New York Mail Steamship
Company.
^^The compensation to the owners of the vessel, under the
charter, was to be the freight and passage money less a com-
inissiim to the New York Mail Steamship Company.
<^Mr. Throckmorton, for complainants, contended that an
allowance for the return freight and passage money should be
ma<le under the decision in Buck & Spofford et ah r. The United
States.
**Tlie court ruled that the engagement of the freight and
passagt"! money by the New York Mail Steamship Company's
agent did not establish such privity of contract with tlie own-
ers of the vessel as to enable them to recover therefor, the ves-
sel having been destroyed before arrival at the \yoTt where the
freight and passage money was engaged."
^^Many of the seamen sailing on whaling
Catch. vessels were paid from the catch, their May'
de}>ending ui)on the amount of oil and bone
taken by the vessel in which they sailed.
''Owing to the ditticulty exi)erienced in proi)erly apportion
ing their claims in accordance with the various contracts en-
tered into by them with the shipowners, to avoid the danger
of a double allowance, to protect sailors absent at'sei^ and to
^ Davis* Keport, First Court of CommiBsioners of Alabama Claims, 21.
MEASUKE OF DAMAGES. 4291
enable owners to obtain x)ayment of advances made to seamen
on the credit of the catcb, the court entered judgment in favor
of the owners of the vessel for the value of the oil and bone
on board the ship at the time of her destruction, which judg-
ment, with the interest thereon, was *to be received and dis-
tributed by the said owners according to law, among the
re8i)ective parties entitled thereto in their due proportion.'
*^The owners, therefore, hold the money awarded by the
court in these cases subject to all claims, as they would have
held the proceeds of the oil and bone taken, had it arrived at
its destination and been sold.
"The district court of Massachusetts, acting as a court of
admiralty, has, I learn, been applied to to settle questions
arising under these awards, and has adjusted them substan-
tially in accordance with the rulings of this court.
" In estimating the value of the oil and bone lost on whaling
vessels, the court seems to have taken their average value for
the year during which the vessel would have reached home, in
the ordinary course of navigation.
"The claim of John Stevens, a seaman on the Ocean Roverj
for the value of his share of the oil on board of that vessel at
the time of her loss, was dismissed by the court, his remedy
being against the owners, a judgment having been entered in
their favor for the whole value of the catch." ^
"It appears that the court allowed wages
agei an expenaes ^ geameu for the time shown to have elapsed
Ox JAft.lHWH '
from the destruction of the vessel to the date
when employment was next secured, not exceeding in any case
one year. The wages, uj) to the date of destruction, appear
not to have been allowed, as the seamen have their remedy for
this loss against the owners.
" The actual expenses of seamen in returning home, or to
the place where they next secured employment, appear to have
been allowed.
"Seamen on whaling vessels generally sailed under an agree-
ment to receive from the owners as compensation a propor-
tion of the proceeds of the catch of the vessels. For the
judgment of the (?ourt in these cases, see Catch, nn2)ra,''^
' Davis'B Heport, First Jlabamt Claims Court, 23.
5627— VOL. 4 G7
4292 INTERNATIONAL ARBITRATIONS.
"Moses Hyneman )
r. [ No. 643.»
The United States. )
"The iK't creating; tlio Court of Commissioners of Alabama Chiims limits
its juriHilictioii tu claims for losses directly resultini^ from damage
cauH«'(l by c«*rtain so-called innurgent cmisers.
'*Tho cost of an adjustment of general avcrafre on a ransom lK>nd taken
from the master of a vessel captured (but not destroyed) by the Ala-
bama is not a loss directly resulting from damage caused by one of the
said cruisers.
■
"The case is stated in the opinion of the court.
"Mr. Frank W. Hackett for the complainant.
"Mr. J. A. J. Creswell for the respondents.
"Porter, J., delivered the opinion of the court:
"In December ISiVJ the complainant ship])ed from New York
on the steamship Ariel certain merchandise destined to San
Francisco. When the Ariel had prosecuted her voyage aboat
as far south as Cuba she was pursued, tired ui>on, and stopped
by the rebel cruiser .1 labama. The commander of the Alabama
evinced a strong desire to destroy the steamship, as lie had
done, and continued to do, so many other valuable vessels.
But the And had on board six hundred and sixty seven pas-
sengers, including; one hundred and forty United States marines
and their oflicers. too many to be taken on board the Alabama
or to be sent adrift in small boats. Embarrassed by this cir-
cumstani^e, he exacted from the master of the Ariel a ransom
bond, which purported to be executed by the master for himself,
the owners of the ship, and of its cargo, and stipulated well
and truly to pay the sum of $261,000 "^ unto the president of the
Confederate States of America, his successor or successors in
office, within thirty days after the conclusion of the present war
between the said Confederate States and the United States.-
On the arrival of the ^oods at San Francisco the owners of the
steamship line, regardinj^ the case as one of general average,
placed it in the charge of professional adjusters. The i)roceed
ings of the adjusters have not been very substantially proved
in this court: but we assume the professional competency of
the persons so employed, and the technical accuracy of their
work. They api>ortioned the respective amounts which the
vessel, the freight, and cargo were liable to contribute if pay-
' Davis's Keport, First J labama Claims Court, 45.
MEASURE OF DAMAGES. 4293
ment of tlm bood were finally exiicted; and they also api)or-
tioned the expenses of the adjustment among these ditterent
interests. They fixed the sum which would be payable by Mr.
Byneman as his portion of the bond at $4,880.53, and his por-
tion of the expenses of the adjustment at $78.73. He paid the
last-mentioned sum in gold, and he claims to recover it from
the money awarded to the United States at Geneva. Can
we allow it? It is a case on which several cases are said to
depend, and deserves the careftd consideration which we have
endeavored to give it.
^^It may be admitted that where a ship is seized and detained
by a superior force, a sum of money paid to ransom her consti-
tutes a case of general average. (Emerigon on Insurance, 485;
I Parsons on Maritime Law, 299; Glarkson v. Phoenix Insurance
Co., 9 Johnson, 1; Girard v. Ware, Peters's Circuit Court
Reports, 142.)
^< In the present case no money was paid, but a bond was
required, and we think the claimant justly entitled to the infer-
ence that if the master had reiiised to give the bond the ship
and her cargo would Lave been destroyed. It is clear, also, that
by long-estaKished usage, as recognized by the best writers
(2 Phillips on Insurance, 100), the charges of the adjuster or
despacheur are to be borne proportionately by the owners of the
property saved by the payment of a ransom. The peculiarity
of this case is that payment of the bond was never demanded,
and, as the facts show, never could have been enforced. It
must be regarded now as an instrument utterly void in law.
Can the claimant recover from this fund the sum which he
was compelled to pay toward the expenses of an adjustment
consequent on the giving of such a bond ?
"By the act of Congress of 23d June 1874 our powers are
thus limited : ^ It shall be the duty of said court to receive and
examine all claims admissible under this act that may be«x)re-
sented to it directly resulting from damage caused by the
so-called insurgent cruisers,' etc. In the jurisprudence of most
countries a distinction has been necessarily drawn between the
proximate and remote causes of loss. In Livie r. Janson (12
East. 648), Lord Kllenborough held that if a ship meet with
sea damage which checks her rate of sailing, so that she is taken
by an enemy from whom she would otherwise have escaped,
the loss is to be ascribed to the capture and not to the sea
damage. So, where a vessel was compelled by sea damage to
I
4294 INTEBNATIONAL AEBITRATIONS.
put into a forei^fu port for repairs, and tlie climate of the conL
try rendered uecessury the sale of a part of the cargo, a los
thus arising in not a conaequence of tlie perils of tbe sea
(Goold r. Sliaw, 1 Joliiisnu's Cases, 293.)
"la Uillier r. The AUegbeny County Insurance Company (^
Pa. State It. 470), it vas Ueld tbat, wbere goods not toucbed
by Hre were removed under a reasonable apprelienidoii tbal
tbey would be consumed by a fire tlien raging iu tlie imme-
diate uoigbborliood, tbe injury sustained was not covered by
a policy ngaiust the peril of tire. The books are fall of such
cases. Tbey were well known to tbe eminent lawyers of each
house of Congress who so long had tbia act in their charge.
The losses cognizable in this court were therefore defined witli
severe precision. We are to consider and determine upon
claims for losses arising not simply from tbe wrougAil acts of
the insurgent cruisers, nor merely growing out of tbe iujaries
really occasioned by such acts, but for losses directly resulting
from daniaj^e cause<l by tbe siiid cruisers. Au act of damage
must be shown to have been committed, and tbe act mast
appear U> be tbe direct, as distinguished from the remote,
cause of the loss. The loss from a jirobable or anticipated
injury may have been greater iu some cases than from a real
act. The remote result of an act of damage may have been
ruinoui! to tbe party sufi'ering it. Upon tbe cousideration of
these cases we are expressly prevented from eateriug. In
every case brought heie two things must be shown to have
concurred, namely, damage done by one or more of tbe iusor
gent cruisers, and .1 loss as its direct lesult. If either of these
clemeuts be wautiug we are iiowerless to give a claimant any
redress.
"Has this claimant sufl'ered any loss which is the direct
result of damage caused by the Altibaiuaf She did no dam-
age whatever tu the Ariel, or to her cargo, and did not exact
from her the payment of a dollar of money. Tbe apprehen-
sion on tbe pHrt of the owners of the Ariel that they might
at some time be rei|uii'ed to pay le<l tbem to demand tbe
money from the claimant, and he, to save tbe trouble of a con-
test over it, paid tbe sum rei|uired. If he has lost by tbe
triinsactiou lie has been unfortunate; but it is plain to us that
bis loss is not one directly resulting from damage caused by
the Alabama, iia these terms are employed iu tbe act of Con-
gress, whence our jwwers are dorive<l.
"Judgment for tbe Unite<l States."
MEASURE OF DAMAGES. 4295
"Ann Eliza Gannett, of Massachusetts, ^
administratrix of the estate of Abraham Os
bom, deceased, et al.j
V,
"The United States.' ^
^No. 184.
'^1. All claims for damage caused by the so-called insurgent cruisers Ala-
hamay Florida^ and their tenders, and all claims for damage cansed by
the so-called insurgent cruiser Shenandoah, after her departure from
Melbourne <m the 18th day of February A. D. 1865, must directly result
from damage caused by said cruisers.
**2, No claim for *pro8pectire profits' can be admitted or allowed under the
act of Congress of June 23, 1874, creating the Court of Commissioners
of Jlahama Claims.
"The case is stated in the opinion of the court.
"Messrs. Corwine and Manning for the complainant.
"Mr. J. A. .J. Creswell for the respondents.
"Wells, presiding judge, delivered the opinion of the
court:
"Petition embracing alleged facts as follows:
"*To the honorable judges of the Court of CommissianerH of
" A ^ hama ^ Claims :
" ^ First. Your petitioner, Ann Eliza Gannett, administratrix
of the estate of Abraham Osborn, deceased, for herself and the
other parties whose names are set forth in the caption and
made part hereof, respectfully represents that said Abraham
Osborn, togettier with said parties, was the owner of the
whale ship Splendid on the 11th day of August 1862, which
was fitted out and fully equipped at Edgartown, Dukes County,
State of Massachusetts, to pursue the whale fishing in the
Atlantic Ocean for a voyage of thirty months, with a full
complement of officers and crew; that said ship was owned at
Edgartown ; that she was driven out of said Atlantic Ocean
by the rebel cruiser Alabama while engaged in pursuing her
voya<re and business on those fishing grounds, and after ob-
taining supplies at the port of St. Catherines she proceeded to
the Arctic Ocean and the Anadir Sea; that while so engaged
she was pursued by the rebel cruiser Alabama, with the pur-
pose of capturing and destroying her, and was compelled to
leave said fishing ground, and then and there and thereafter
prevented by said rebel cruiser from returning to said fishing
ground for a period of more than two months; that when so
compelled to leave, the preparations which had been made at
that time, and the work that had already been done, promised
a most successful season's catch; that the unlawful act of the
Davis's Report, First Alabama Claims Court, 42. ^
%
4296 INTERNATIONAL ARBITRATIONS.
AlatMwa caused injury to the property and interests of peti-
tionerH < directly resuttinfj^ from damage caii8e<l by' said cruiser,
in this, ttiat it broke up the season's catch, destroyed the enter-
prise, and put an end to the voyage, to the g^reat i)ecuiiiarT
daniaf^e and serious material injury to your petitioner, whereby
the said owners lost their entire oufits, refits, and investment,
exc^ept the ship itself, and that was greatly deteriorated in
value, requiring large outlays to fit it for another season's
voyage; that the master of said ship was compelled to escape
with his said ship from the pursuit of said rebel cruiser, or
otherwise have his said ship burned, as was the fact with many
whalers at that time, being on the same crnising: ground.
^< ^And i)etitioner avers and states that it cost the owners of
the Splendidj for tlie preparation of said voyage, for the outfit
of said vessel, etc;., the sum of $50,000.
'* ^That that season's catch, covering a period of about one
year, broken up by this act of said rebel cruiser, was well
worth, and would have realized the owners of said ship, the
sum of 3?r)(),()00; which loss wholly and directly resulted from
the damage caused by said rebel cruiser, in manner and under
the circumstances aforesaid.'
• • • • • • •
"To which the United States interposes a demurrer, as
follows :
" ^ 1. Because the said claim of said cx)mplainant is not admis-
sible under the provisions of the law creating this court.
*' '2. Because the said claim is not a claim directly resnltinj^
from damage caused by the so called insurgent cruisers ^4 /fl-
hama, Florida, and their tenders, or any of them, nor one
directly resulting from damage caused by the so-called insur-
gent cruiser Shenand(fah, after her departure from Melbourne
on the 18th of February 18(55.
'' '3, Because the said claim is based upon unearned freights,
gross freights, prospective profits, freights, gains, and advan-
tages.
*^*4. r>ccau8e the (lovernmeiit of the United States is not
bound to attbrd a convoy to every ship upon the high seas,
and can not be held responsible for unlawful acts ])erpetrate(l
upon citizens of the United States by hostile and belligerent
cruisers.
*'^"). Because the said claim is not admissible under well-
established prin(!iples of mercantile law.'
** Section 11 of the act of Congress, approved June 23, A. D.
1874, under which this court was organized, would seem to dis-
pose of this case; in fact, two words of this section, if the
exact meaning of the same could be clearly reached, would
remove a dillieulty which lia^ involved lengthened discussion,
MEASURE OF DAMAGES. 4297
aiul presented an amount of legal learning very interesting to
the court and creditable to the gentlemen engaged in the case.
The two words -directly resulting,' occurring in the third line
of se<5tion 11, in almost any other connection, would seem to
have by themselves a significance that could not be misinter-
preted; the words in their connection in this section of the
law, it seems to the court, are not used loosely, as though Con-
gress, in the hurry and confusion of its session about to close,
had not been carefully critical in expressing the intent of the
lawmaking power. Section 11 reads as follows: *That it
shall be the duty of said court to receive and examiue all
claims admissible under this act that may be presented to it,
directly renulthuj from damage caused by the so-called insurgent
cruisers Alabama, Florida, and their tenders, and also all
claims admissible under this act directly resulting from damage
c<iuse<l by the so-called insurgent cruiser Shenandoah,^ etc.
Now, if Congress had intended such construction of this sec-
tion sis has been insisted upon by claimant in this case, why
was the word 'dire<5tly' used at all? The case of claimant
might possibly have been covered by the language of this
section if it had read, ^ That it shall be the duty of said court
to receive and examine all claims admissible under this act
that may be presented to it, resulting from damage caused,'
etc., leaving out the word ^ directly,' for the term * resulting
from' implies a direct or in(\;rect result, a result of the hour,
or a result after months or years, a result now and here, or a
result hereafter; not so with the phrase 'directly resulting;'
this fairly implies an immediate consequence, a prompt follow-
ing after an act now and here done and performed.
'* It is hardly possible for this court to fail to distinguish
the difi'erence in two cases, the one where a vessel was cap-
tured by one of these insurgent cruisers, the immediate
announcement that she is a prize, her oHicers and men in
irons transferred at once to the Confederate vessel, the cap-
tured vessel in tlames, and all this within an hour; the other
case, a vessel driven from her fishing ground, and a conclu-
sion, reached after a lapse of two months or more, which may
be correct or incorrect, that her prospects or season's catch is
broken up, that her voyage, intended for years, is at an end,
except to return to her port of departure. In the one cjise,
all is certainty, a * direct result; ' the captured vessel in tiames
immediately after her surrender, and sure to be totally con
sumed, except so much of the same as may be beneath t
I
4298 INTERNATIONAL ARBITRATIONS.
ocean's Barface; nud, iu tUe other case, a something to occar it
the future, aud possibly to be qualified as to loss or no loss bj
the timidity or cowardice of a comiuaDdiDg officer or thf
destructiou of a vessel hy fire, collision, or storm.
"The construction placed by this court on the words
' directly resulting ' does not imply that \re entertain the idea
that Congress acted wisely or unwisely in the use of the word
'directly' as it occurs in section 11; the court has nothing to
do with the action of Congress in this respect; it is oar dnty
to construe tlie law as we find it, and to give, as we may have
the ability, a reasonable construction to every part of section
11, as it comes to our bands from the law-making power.
" In giving an opinion as to the construction of section 11
aud other portions of the act of June 23, A. D. 1874, the court
has carefully examined tlie authorities cited from the Congres-
sional Record, vol. 2, part 6; The Treaty of Washington, by
Cusbing, pages 1G4, 165, and 166, and the various decisions
of the courts affecting the construction of the act of June 23,
1874.
''If the claimant in this case can substantiate what she
alleges us fact in her jietitiou, it may be a proper subject for
Congressional action in the future so to legislate as to bring
such case within the purview of the law, and thus give to her
and others the benefit of i\ portion of the fund which Great
Britain, iu the furtherance of Justice, has paid the United
Stiites as compensation for an omitted national duty. Con-
gressional legislation must give the relief, if any is to be had.
This court in witimnt the power, much as its sympathy might
be enlisted for the claimant, to give her any relief.
" Iti considering this case, as it is connected with section 11
of the law creating this court and defiuitig its dnties, we have
not been uninindfnl of that provision of section 13 of the same
law which prohibits the allowance of any claim based on
'prospective profits,' which prospective profits might be
involved in the statement of claimant in her petition that the
'season's catch," covering a period of about one year, broken
up by the act of the rebel cniisor Alaliaiiia, was well worth,
and would have realized the owners of said ship, the sum of
850,001).
"In enacting tliis provision of the law, of course Congress
had in view that jiart of the decision and award of the tribu-
MEASURE OF DAMAGES. 4299
nal at Geneva which was cited by counsel, and reads as
follows :
"*And whereas pro8pec>tive earnings cannot properly be
made the subject of compensation, inasmuch as they depend
in their nature upon future and uncertain contingencies,
• * • the tribunal is unanimously of opinion that there
is no ground for awarding to the United States any sum by
way of indemnity under this head.'
"Now, were there no uncertain contingencies connected
with the ' prospective ' or expected catch of the whale-ship
Splendidj ' equipi)ed to pursue the whale fishing in the Atlan-
tic Ocean for a voyage of thirty months?'
" The dangers of the sea are topics of talk with a host of
our legal brethren from the opening to the end of the year, and
every year since our government was founded. There is no
end to the number of volumes on the subject of marine law,
embodying elementary principles and adjudicated cases,
abroad and in this country, a large proportion of which exhibit
the uncertain contingencies connected with ocean navigation.
^^ Millions of capitiil are invested to guard against marine
risks, and in every policy of insurance issued some of the
l>erils of the sea are enumerated. God's providence and His
wisdom can only protect against the dangers of the deep.
" In view of all this, in view of the actual realities of life,
we are led to the conclusion that there were many * uncertain
contingencies' connected with the ^season^s catch ' of the
whale ship SpJendidy the season embracing a term, as stated
in the petition, of not less than one year, and with the vessel
fitted to pursue the whale fishing for thirty mouths.
" After full consideration of the arguments and authorities
cited by counsel, the conrt sustains the demurrer filed in this
case and enters judgment for the respondents."
" William Phillips et al. )
V. [ No. 1228.
The United States.' )
*' In re bark Richmond.
*'The court han no authority to make compensation for damages occa-
HioDod by taking the crews of vessols doMtroyed by one of tho so-called
insurgent cruisers from a vessel captured and bonded, and carrying
them to a i)laco of safety ; the vc'ssel for which compensation is
claime<l never having been captured.
**The damage under those circumstances is too remote.
Davis's Report, First Alabama (-hiims Court, 56.
4300 INTERNATIONAL ARBITRATIONS.
** A Atat^inont of the ease will be foand in the opinion of
the court.
*' Mr. Willismi W. Crape for the complainants.
*' Mr. J. A. J. Creswell for the respondent.
"Jewell, J., delivered the opinion of the coort:
"This is a claim made by the owners of the bark Richmond
for compensation for the use of the said vessel, and damage
for conscijuent loss of the catch of the same.
"It appears that the bark Richmond was, in tli*e month of
June 1805, in the Northern Pacific Ocean, near Behring's
Straits, pursuing the whaling bnsiness. The Confederate
cruiser Shrnandoah had captured a large number of whalers,
and among them the bark General Pike. The others had
been burned and the General Pike spared, and the officers and
crews of the other vessels, to the number of 252, placed on
board of her for conveyance to the nearest port, or to any port
which they miglit be able to reach. The last of these captnres
was on the 28th day of June.
"On the 1st day of July the master of the Richmond felt
himself compelled to take on board his own vessel a portion
of the officers and men from the General Pike under circum-
stances fully detailed by him in a ^statement' annexed to the
petition, which is as follows. We also add the statement of
the musters, ma4le at the request of Captain Weeks:
"'Statement of the master ofth<' "Richmond,^
''^We left Honolulu in the bark Richmond, bound on a
whaling cruise to the Arctic Ocean. While in the prosecution
of su(jh, on our arrival in the vicinity of Behring Straits, we
came up with a whale ship on fire. Not knowing the cause of
it, I beji^an to save such articles as I could from the wreck, as
she had drifted into the ice, and her mast falling over the side,
I found 1 could save many articles valuable to the use of my
own bark, and as the wind was against me, I was not losing
much time by so doing. While doing this a ship came to me
with all sail set, steering to the southward, hailing me as he
passed by, telling me there was a pirate close at hand, at the
same time advising me to tiee, as he was doing, for probably
all that remained wouhl be destroyed. But on due considera-
tion 1 det<MMnined not to leave, for 1 would as quick lose the
ship as go without oil. 1 canie to the conclusion 1 would await
a southerly storm or foggy spell usual at such times of the
year, and take advantage of the opportunity and get through
the straits in spite of the Shenandoah^ as it proved to be. My
MEASURE OF DAMAGES. 4301
experience in those waters would enable me to do this. While
waiting for a favorable opportunity to do this we raised a sail
in the north coming toward ns. A few hours after the wind
died away and a lK)at was lowered from her and came in pur-
suit of us. Coming alongside I was surprised to see so many
faces of shipmasters. They had been token by the Shenan-
doah and put on board the General Pike. They stated they
were crowded and suffering from want of room, &c. They all
joined in begging me for the sake of humanity to relieve them.
1 went on board of the General Pike to see for myself, and
found they had not misrepresented the matter. I next re-
turned to my own vessel, consulted with my ofBcers, and came
to the conclusion we ought to relieve them. I then told the
shipmasters and prisoners that if they still insisted on my tak-
ing a portion of them, and would give me the same in writing,
with their signatures, which was agreed to and signed by all
the shipmasters, I dare not do otherwise. Under such condi-
tions 1 had to submit. They put on board of me 52 men ; with
those 1 sailed for Honolulu, and thereby losing my season.
" < W. P. Wbbks, Master.
*^ ^Statement of the masters.
" < At Sea, July i, 1865.
"* We, the undersigned, do solemnly swear that our ships
were burned by the pirate Shenwidoah. and we were placed with
our crews on board of bark General Pike^ 252 men, all told;
and being afraid of sickness, on account of the crowded state
of the ship, we requested Captain Weeks, of bark Richmond^
to take some of our men, which he kindly consented to do out
of humanity's sake.
" * O. G. Robinson, Captain hark Gypsey.
*' ' Hudson Winslow, Captain bark Isabella.
" ' William H. Phillips, bark Catharine.
*' ' F. S. Rbdfield, brig Susan Abagail.
" * James M. Clark, bark Nimrod.
" * i\ H. Cooley, bark Wm. C. Nye.
" * William Benjamin, ship Gen. Williams.
** ' Hebron M. Crowell, bark General PjAy.'
" The conduct of the master of the Richmond^ as shown in
this statement, in refusing to flee from the Shenandoah, saying
he would 'as quick lose the ship as to go without oil,' support-
ing his declaration by his action in remaining, and in finally
yielding to considerations of humanity what he would not
yield to fear, is worthy of the highest praise.
'^ His desire of making a cargo of oil was greater than
fear of capture by the Shenandoah. What fear could not
strain him to do, feelings of humanity did.
4302 INTERNATIONAL AEBITRATION8.
" After a carefnl examination of the necessities he volant
rily abandoned his own adrentare to save the lives of tt
ofiicers and men put in i>eril upon the overcrowded Oenen
Pikt'.
" Nothing more honorable or praiseworthy has been show:
ill all oar hearings. Can tliis court make compeosation fo
the loss thereby incurredT
" We are compelled to say that nnder no view of the act o
Congress creating this court can wo find authority so to do
The claims admissible before as must be such as directly resnli
from damage caused by tlie so-called insurgent crnisers.
"In two cases ht'tetofore considered by ub, where vesself
were captured by the Alabama and the crews of other vessels
put on board for transi)ortiition to a port of discharge, we
have awarded compensation for such compulsory service. Bui
both those vessels had been actually captured. Here there
was no capture.
'* The petition must be dismissed,"
"The brig Baron dc Castitte on the 20th Oc-
"^r'^l"^" tober 1862 sailed from Bangor, Maine, with a
cargo of lumber, bound for Cardenas, Cuba.
On the 30th October she was captured by the Alabama, bonded
in the sum of $^,000 on the brig and $>L',OI>0 on the cargo, and
forty-four prisoners were put on board of her. The brig was
obliged to make for Boston, the nearest port, where she arrived
on the 2d November. She was detained at Boston about ten
days making repairs, when she proceeded to Cardenas.
"The brig at the time of capture was sailing under a charter
binding lier to take a cargo of Inmber from Bangor to Car*
denas, returning to New York with a <!argo of merchandise,
thirty lay days being allowed to receive and discharge cargo;
the compensation agreed to being $2,250, currency, and foreign
port charges paid.
"Counsel for complainants, Mr. Alexander P.Morse, c<m-
tended that danuiges should be estimated by accepting the
value of the charter party, allowing its full value, less any
indemnity or compensation paid complainants in consideration
thereof. (Rogers r. IJeard, ;!(» Barbour, 31; 20 Howard, Pr.
Re[)orts, 102.)
if this basis of comi>ensatiou should not be accepted by the
court, counsel claimed indemnity, to be estimatetl as tbllows,
viz, by computing the number of days lost by capture Jiud
MEASURE OF DAMAGES. 4303
multiplying it by a figure representing a fair compensation on
that account.
''That an allowance should be made also for provisions con-
sumed and other actual expenses consequent upon the capture.
(McAfee v. Crotford, 13 How. 447; 6 Bingham, 716; No. 19,
Eug. L. li. 215, etaeq.; Sedgwick on Damages, pp. 57, 63 (note),
69, 99.)
''Judgment was entered in favor of the complainants. So
opinion was delivered. From a comparison of the amounts
claimed and awarded it appears that the court calculated
damages in accordance with the second basis of computation
suggested by counsel." '
" lu the case of the bark Justina it appeared
Case of the "JuBtma." that while on a voyage from Eio de Janeiro
to Baltimore she was captured and bonded.
Nineteen prisoners were placed on board, and the master was
ordered to and did proceed to Baltimore without stopping at
any intermediate port; that the Justina was in ballast, and
but for the capture would have stopped at the West Indies for
a cargo to Baltimore.
'* Complainants claimed the passage money of the nineteen
men at $100 gold, each, amounting in currency to $2,750.25;
the value of one crate of bananas, taken by the crew of the
Alabama^ $25, and the value of the vessel for freighting pur-
poses during the time she was under bond, viz, thirty-six days
at $75 a day, amounting to $2,700; the total amount claimed
being $5,475.25.
"The court awarded $1,425, with the usual interest. The
amount of the judgment can be reached by allowing passage
money at $2 and a small fraction per day per man for the
prisoners on board for the thirty -six days they were on the
vessel, adding the value of the crate of bananas.'' ^
"William Henry Uaskins v. The United
^*?^208"*' States, No. 208. The complainant was master
of the ship Louiitiana, a whaling vessel which
was driven into Kotzebue Sound, in her attempt to escape
from the Shenandoah^ where she stuck on a sandbar, took fire,
and was burned, with nearly all her contents. This complain-
ant asked indemnity for loss of personal e£fects, wages, and
share of oil, together with his expenses in returning home.
> Davis's Report, First Alabama Claims Coart, 21.
4304 INTERNATIONAL ARBITRATIONS.
" Gouusel OD behalf of tbe United States detnarred to tbe
petition.
"Third. Because the claim of the said complainant is not
admissible under the law creating tliis court.
" Fourth. Because the said claim is not a claim directly re-
salting Irom damage caused by the so-called insurgent croisers
Alabama, Florida, and their tenders, or by either of them; nor
is it & claim directly resulting &om damage caased by the so-
called iusurgeut cruiser Shenandoah after her departure from
Alelbourne on the eighteenth day of February in the year
eigliteeu hundred and aixty-flve.
" Argument ou the demurrer was had at the final hearing of
the cause. Mr. H. H. Wells, for the complainant, contended
that the claim was for a loss directly resulting from damage
caused by the Shenandoah, and was within the jarisdictioa of
the court, citing the elevetitb section of the act of June 23,
1874, and the followiug authorities: Waters r. Merchants'
Louitiville Insurance Co., 11 Peters, 213} David 0. Magouii r.
New Hugland Marine Insurance Co., 1 Story, 157; 1 Phillips
on Insurance, sec. 113'2, page 677, 5th edition, 1807; Thomson
i\ Hopper, 1 Ellis, Blackburn & Ellis, 1038; Hahn v. Corbet, 2
Biiig. 205; i'atrick v. Commercial Insurance Co., 11 John&ou,
9; Peters V. Waneii Iiisuntm^e Co., 14 Peters, 99; Insurance
Co. I'. Tweed, 7 Wallace, 44; Dole r. New England Mutual
lusurance Co., 2 Cliilord, 394; Voss v. United Insurance Co.,
2 Johnson's Cases, 180; Luckley c Delafleld, 2 Caine's Cases,
222; American Insurance Co. r. Dnuhain & Wadaworth, 12
Wendell, 403; Uavelock r'.Hansell,;t Term Keports, 277; Grim
r. I'hcciiix Insurance Co., 13 Johnson, 451; Moutoya et al. r.
London Aasur.ince Co., 4 Eng. Law and Eq. 500; Savage r.
Pleasants, 5 Binn. 403; Coolidge r. New York Fireman's In-
surance Co., 14 Johnson, 308.
"Mr. John A. J. Creswcll, counsel on behalf of the L'nited
States contra.
"The court ilismi.ssed the petition."'
"Ann Eliza Gannett, administratrix of the
^'^l^llzi"' ®^'^'**® °^ Abraham Osbom, deceased, v. The
T'nited Slates, No. 1321: The foUowiug allega-
tions were made in the petition : Complainants were owners of
tbe ship Mary, of Edgartown, which cleared the 18th of Jane
< Davia's Report, First .llabama Claims Coart. 19.
MEASURE OF DAMAGES. 4305
1861 for a whaling voyage of five years in the Atlantic and
Indian oceans and elsewhere. In November 1863 the master,
to escape the Confederate cruiser Alabama, ran into Singa-
pore, and being blockaded there shipped his oil on a British
ship to England. This was valued in Singapore, as shipped, at
$36,852 gold, but netted the owners (in gold) at home (through
England) only $9,990, making a loss, in gold, of $26,862, which
sum was claimed.
^^This claim was dismissed, together with others similar to
it in principle."'
'* In the case of Samuel Osborn, jr. et al. v.
^^"'■JJ^' The United States, No. 787, the following alle-
gations were made in the petition : That the
whale ship Almira, in the summer of 1865, was fitted out to
pursue the whale fishery in the Pacific Ocean for a voyage of
four years, and proceeded to the Arctic Ocean. While there
she was ' pursued by the rebel cruiser Shenandoah, with the
purpose of capturing and destroying her; and she was com-
pelled to leave said fishing grounds, and then and thereaiter
prevented by said rebel cruiser from returning to said fishing
grounds for a period of more than two months; that, when so
compelled to leave, the preparations which had been made and
the work which had already been dcme promised a most suc-
cessful season's catch.' The owners claimed the value of the
season's catch so lost.
^^This claim and others similar to it were dismissed by the
court, after extended argument.
^^ The gross amount claimed in this class of cases is esti-
mated at $2,000,000, not including interest."^
William A. Baillie and BLIZABETH'^
H. Baillie
>No. 2066, Class 1.
i
Th::; United States.' )
This claim involved the question as to the standard by
which the value of property destroyed by the Confederate
cruiser TallahoHsee on the high seas on August 12, 1864,
should be measured. The value of the property as found in
• Davis'H Report, First Alabama ClaimH Court, 20.
^Second Alabama ClaimB Court.
4306 INTERNATIONAL ARBITEATION8.
tlir ulatm filed in tlie Department of State on the 3l8t
October I860 was $19,700, but the aaiouut was swollen in tl
memorial before the ooiirt to $96,18;i.l8, on wliicli interest w,
alsu asked. The goods destroyed were compritted in 44 paci
ages. Of these 38 were purchased in China and Japan fi
17,T49 Mexican dollars, silver, worth, if converted into
Japaueac billof esirhange on Loudon, 420,964.78 United Stab
gold, whicb, together with port charges and iuterest at 6 pc
cent from the date of shipmeut to the date of loss, amonute
in legal tender notes of the ITuited States at that time t
$54,570.12,
The other 6 packages were bought iu London, and their vain
with charge:;, freight, aud interest ft-om date of capture to dat
of loijs was $6,301.54, aggregating with the amonnt last aboT
named to $60,871.66. This was brought up to $90,182.18 b;
an amendment to the meuiorial including certain other item
for goods alleged to have been captured and destroyed bnt no
included in the original memorial. The court rejected thi
amendment, the property embraced therein appearing to havi
been included iu the invoices described in the original jietitiou
As to the allowance of tbt value iu legal tenders by conver
sion of the amount in gold by tliat standard, Judge Harlan
who delivered the opinion, said that the court had held ii
numerous cases " that the value of the property destroyed mns
be ascertained and reckoned in the currency used by th<
owners iu the transiiction of the business out of which thi
claims arose." In coin transactions coin values had been usei
in making up judgiiicuts; in legal-teruler traustict ions, legal
tender values had been used. Judge Harlan said :
"A seeming exception, but not a departure in principle, ha
been made in cases in wliich the business was transacted ii
coiu and the coin itself was purchiised for that pui-pose witl
legal-tender notes. In all sueli cases the court has felt coii
strained to a<lopt the paper-currency value of tlie property ii
the rendition of judgments.
"Thecourtdoesnot attempt to conceal from itself what mns
be obvious to everyone, timt the adoption of this rule of iutet
pretation and appliealion of the statutes bearing on the sub
Ject affects these two classes of claimants unequally, but, it ii
believed, not unjustly.
" Such claimants as paid for the property destroyed in stand
ard coined dollars, recovering judgiuent.s for the number o
dollars thus invested, payable in standard coined dollars or ai:
eiiuivalent, will receive full indeitiuity for their total loss, am
MEASURE OF DAMAGES. 4307
will have no cause to complain, although another class of claim-
ants who, endeavoring to support the policy of their govern-
ment and to sustain its credit, having purchased property with
legal-tender notes when below par in \he money markets of the
world, will recover judgments for the number of dollars thus
invested by them, also payable in coined standard dollars or
an equivalent. The advantage accruing to the latter class
works no injustice to the former class, and is derived by them
in common with other patriotic citizens who at the same time in-
vested legal-tender notes in government bonds and other secu-
rities payable in paper money which have since become equal
to coin in value. And this court finds nothing in the statutes,
nothing in the policy of the government, and nothing in the
decisions of the courts. State or national, to justify it in reduc-
ing the value of i)roperty bought with legal-tender notes when
below par to its coin value of that pericnl in the rendition of
judgments.
*'But if the rule adopted by the court could be shown to be
erroneous in this respect, it would not affect the rights pro or
con of claimants at bar. They purchased the larger part of
this property in Japan or China, and paid for it, as they allege,
in Mexican silver dollars, and the residue in London, and paid
for that in sterling money. Hence, when they shall obtain
judgment for a sum of money payable in the coin of the United
Stiites or its equivalent in value to the value of the Mexican
dollars and sterling money so used, they will have been fully
indemnified.
"The claim for premium on the alleged gold value of this
property is therefore disallowed."
The rest of the opinion was as follows:
** Claimants allege that the 17,749 Mexican silver dollars used
in the purchase of these Chinese and Japanese goods were
worth, in a six months' time draft or bill of exchange on Lon-
don, 820,964.78 in the gold coin of the United States, and also
insist that they are entitled to compute interest on this sum from
thedateof shipment to the date of loss as an increment of value.
It is clear, however, that the value of the use of money during
the period named in a time draft must be a part of the consider-
ation regulating the cost of exchange. Hence, if the claim for
exchange should be allowed, the demand for interest in this
case must be rejected. Otherwise the same element of value
would be duplicated.
"Claimants aver in the amendment to their petition that
a part of these Chinese and Japanese goods were purchased
by them originally for less than their commercial value, and
that said goods had increased in value after the date of pur-
chase and before the date of destruction, so that at the latter
date they were m fact worth double their original cost; an
increase, as they allege, equal to the value of 10,804 Mexican
5027— VOL. 4 68
4308 INTERNATIONAL ABBITEATIONB.
silver dollars, whicli tbey pr»y inay be added to the origlDal
claim.
" In tlie opinion of the court, the claimants have a legal right
to recover the value or their pi-o{>erty at the dat« of the loss;
but when the destruction occurs in mid ocean ite valne van not
ordinarily he ascertained at the place of loss. Hence, the
rule heretofore observed by the court in thi^ respect has been
to endeavor to ascertain its value at the port of shipment.
For this purjiose evidence of its cost is not only adtuissible,
but, in the absence of other paramount testimony, may be
treated as conclusive. For although the cost or pnrchase
price of property must be considered merely as evidence of
value, to be weighed in connection with any other testimony
produced, yet it is fair to presume that property will Dsnally
sell for all th»t it is worth at the jdace of purchase, and that
the vender will not ordinarily accept iu exchange for it less
than its mercantile value,
" This method of ascertaining the value of property is so
satisfactory as to have been ado[>ted by Congress. ^Uenee, all
the de]>artment8 are required by law to make purchases of
property for the government of the lowest bidder, after safiQ-
cient advertisement, and to sell government' property, after
due public notice, to the highest bidder, aud contentions at
the custom-hon.-ies i» to the value of dutiable goods are set-
tled by ottering samples for sale at public outcry. And this
method (»f ascertaining the value of property in private busi-
ness pursuits is generally rcfrarded as reliable.
"In the case at bar the cost of the ^oods is not established
with precision. NobillsofHule, receipted bills,or hook entries
in current account,made at the time of (lurchase, showing their
cost, are pro<luced. The cost is' arrived at by claimants only
approximately. They both testify that these Chinese and Jap-
anese purchases were made by them at sundry times covering
a periiKl of several years nest preceding their sliipment, and
that memoranda of the articles were made as the packing pro-
gressed prior to embarkation, aud that on the jiassage with
these goods from -Jitpan to Ivondon a list of these packages and
their contents was written byoueof these claimants in a book,
and that in consultation with each other as to their original
cost prices were written op|H»site each article, and that like
entries were made in the saiue biH)k. on the passage to the
(i"nited States, of the London jnirchases, which book memo-
randa is produced in supjmrt of their testimony.
"They also testify that they miule up the statement of their
claim as set forth in their original petition from this book
memoranda, both of them alleging, under oath, iu said petition
that said goods were wurth 4 t",lH!>.92, exclusive of interest,
exchange, and gold premium.
" The court linds that on the i;mi day of October 1805, Wm.
A. Baillie, one of these claimants, filed a chilm in the State
IJepartmont for these same 44 packages of goods, with a view
MEASURE OF DAMAGES. 4309
of recovering indemnity from Great Britain, alleging, under
tbe solemnities of his oath, that they were of the value of
$19,700. The statute of June 23d, 1874, provides that the
court shall rec^eive this State Department paper aud give to it
'such weight as evidence as the court shall think just.'
'< It appears that this State Department paper was prepared
from the same book memoranda. And both claimants testify
that the book memoranda itself was made up, in part, from
loose slips of paper containing memoranda of these purchases
and personal recollection as to the various items of said prop-
erty and their value.
'^ In the opinion of the court, the evidence of presumptive
value derived from the cost of the property in the country from
which it was shipped, haviug been thus ascortained near the
date of the purchase, and deliberately written down by the
purchasers themselves, and adhered to a year afterwards when
the claim was filed in the State Department, is not pvereonie
by the testimony of the same witnesses taken in tueir own
behalf, seventeen years later, supported, as it is, only by cir-
cumstantial testimony of others who never saw the goods.
'^ The claim for additional and enhanced value is, therefore,
rejected.
'< The court is, however, satisfied from the testimony that
the articles of property described in the amendmeut were a
part of the cargo of goods shipped and lost by claimants, and
that they are legally entitled to recx)ver the original cost of the
entire cargo destroyed, including in the estimate of value the
premium on Mexican silver dollars above the gold coin of the
United States in exchange on London, proper port charges,
and prepaid freight.
"Judgment will, therefore, be entered in favor of Elizabeth
H. Baillie, in the sum of $11,838.67, with interest thereon from
the 12th day of August 1864; and in favor of Elizabeth H.
Baillie, administratrix of the estate of Wm. A. Baillie, de-
ceased, in the sum of $11,838.67, with interest thereon from
the same date."
Aaron Brooks, a citizen of the United
^^^l ^^' ^"^ States, claimed damages from Mexico to the
quential Daiiiag6f.
amount of $85,000 for the acts of the mili-
tary authorities in 1864, 1865, and 1866, while engaged in
war with the French, in conscripting the laborers and seizing
aud using his e£fects on a cotton plantation in Sinaloa. The
Mexican commissioner, Mr. Palacio, admitted the liability of
Mexico for property taken and appropriated, and, referring to
the law of Mexico of November 19, 1867, providing for the
examination and payment of debts so incurred, said that if
the claimant had ever presented his case to the Mexican (tov-
ernment his claim doubtless would have been allowed to that
4310 INTERNATIONAL AKBITRATIONS.
extent. He couaidered the claim for $85,000 "simply mon-
stioas," but was ready to award $1,000 to indemnify the claim-
ant "for the value of bia implemeiit^, a Baddle, and a mulb"
Mr. Wadsworth tbought tbut $7,000 slionid be awarded. The
umpire, Dr. Licber, eaid:
"Aarou Jirooks, a naturalized cltizeu of tlie United States,
left (Jaliloruia fur Mexico iu order, as he says, to plant cottou,
following a proclamation of President Juarez, wbich invited
foreigners to settle in Mexico. Brooks went to the State of
Sinaloa, in the Republic of Mexico, iu the month of April 1861,
tbe very mouth wheu the attack of France on the republic
began. He ought to have been somewhat prepared for the
shifting occurrences of war. It was an ill time and place to
begin cotton planting, and how he erer obtained any knowl-
edge of this branch of agriculture, which requires much prac-
tice and experience — he, ivlio says that by trade he is a pattern
maker — due.s not appear from his memorial. He vrent from
California to Mexico with a very moderate outfit and remained
iu Mexico a few years, during which he suffered from the mili-
tary under General Corona. Tbe war between the Kejtublic of
Mexico and the French Empire — plainly to characterize it, a
filibustering exiiedttion seut by a monarch against a repub-
lic— was then carried on, ou Mexican soil, and the generals of
the Mexican Kepublic were obliged by the necessities of war
occasionally to seize upon private property for the support nf
their troops. Tbe republic has acknowledged its obligation to
make good, as far an it is capable to do so, the losses thus sns-
tairied. Brooks did uot avail himself of the Mexican lav call-
ing oil the sufferers to present their claims, but he call.x now
upon an international commission to give him an award of
$85,000 against tbe Itepublii: of Mexico. Tbe right of Brooks
to present bis claims to our commission is acknowledged ou
both sides; the amount ho claims is acknowledged as extrav-
a^'ant eijually ou alt hands, except by himself. ■ ■ ■ The
sum of $tjo,0(>0 has been arrive<l at, by the claiming party, by
adding a large sum fur cunseipiential damages.
"These conseiiueutial damages have been asked before, and
may appear again before the umpire. Let him then give
briefly his opinion on consequential damages, to which lie
may hereafter refer. • • • 'J'hese potential and prevented
profits, called consequential damages, are but raiely and
reluctantly allowed by law unless plainly fair. They are
hardly ever allowed, if ever, when the injury done has been
occasioned by an authority doing its bonnden duty, and never
wheu the iujuiy suflered was inllii^ted by the authority doing
its sacred duty to defend and save the conntry. The French
Government has recently voted a large sum to pay the suller-
ers from the recent war for the losses sustained <Iuriug the war.
These are uot war damages, but the essential character of tbe
MEASURE OF DAMAGES. 4311
losses, with reference to consequential losses, is the same.
What would be thought of a man, under these circumstances,
who should present a schedule of his losses, including the loss
of potential wealth? Nor can these high damages be ex-
plained as exemplary damages. Our commission has no puni-
tive mission, nor is there any offense to be punished.
'^The Mexican Qovernment thinks it fair to allow claimant
$1,000. The American commissioner allows $7,000. This sum
is claimed by Brooks for his provisions, implements, etc.,
destroyed by the Mexican soldiers. Dividing the difference
may be as fair a mode of settling this question as any other,
since data plainly to be relied upon do not appear. * * *
It is my decision therefore that the Republic of Mexico pay to
the United States for the benefit of Aaron Brooks, claimant,
the sum of $4,000 in United States currency."
Aaron lirooks v. Mexico: No. 898, coavention of July 4, 1S68, M8. Op.,
11.206.
CHAPTER LXXI.
INTEREST.
In July 1799 the proceedings of the com-
Conmiinion under mission at London, under Article VII. of the
^de vn., Jay ^^^^^ between the United States and Great
Britain of November 19, 1794, commonly called
the Jay Treaty, were suspended by the withdrawal of the Brit-
ish commissioners, under the orders of their government, in con-
sequence of the suspension of the proceedings of the commis-
sion at Philadelphia, under Article VI, of the same treaty, by
the refusal of the American commissioners further to give their
attendance at the meetings of the board. The details of tiiese
incidents are fully set forth in the history of the two commis-
sions. On the 8th of January 1802 a convention was con-
cluded by which the claims under Article VI. were settled for
a lump sum; and, by an article inserted in this convention, it
was agreed that tbe commissioners under Article VII. should
reassemble and proceed in tbe execution of their duties. After
the commissioners reassembled a question arose as to whether
interest should be allowed on claims during the period of the
board's suspension.
The minutes of the board, under date of
Opinion of Dr. March 17, 1803, contain thefollowing entry:
Swabey.
"Dr. Swabey, having been requested by Mr.
Gore and Mr. Pinkney to assign his motives in writing for hesi-
tating for the present to sign the several awards which are pre-
pared, thought proper to repeat, at the opening of the board of
this day, that he still feels difficulties in that respect which give
him much anxiety; these are already well kno^n to arise upon
the subject of interest, as calculated for the said awards for
the time, inclusively, during which the proceedings of the com-
missioners for executing the seventh article of the treaty of
amity, commerce, and navigation concluded at London on the
4313
4314 INTERNATIONAL ABBITBATIOMS.
4th of November 1794, between His BritaDDic Majesty and
tbe United States of America, stood Baspeoded owing to diffi-
cnlties wbicli liad arisea in America in the execatioD of the
sixth article of tbe same treaty, and he declared that after
deliberate reflection he bad not yet been able to satisfy bis
mind of the equity or justice of adding to the amoaiit of com-
pensation to be paid by the British Government the accruing
interest during sncb interval, aud in regard to an incident of
this magnitude, certainly uot in contemplation of the said
seventh article of the said treaty, nor, so far as he was able to
decide for himself, of any provisiou of the convention which
has been subsequently coucluded, should strongly doubt of the
fitness of certifying (did he otherwise at present think himself
sufficiently authorized to certify) any further award in which
interest shall have been thus calculated, without some com-
munication of what may be the understanding of tbe said
governments or specihc instructions in that behalf."
March 22, 1803, the following entry was
Opinion of Mr. made:
"Mr. Anstey, having been absent from in-
disposition at the last and seven preceding meetings of the
board, upon the opening of the business of this day requested
that the minute entered by Dr. Swabey on the journal of the
last meeting be reitd, and the same having been read accord-
ingly, he declared that liis sentiments upon the question of in.
terest asit regarded theintervalduring which the proceedings
of the board had been suspended coincided with those of Dr.
Swabey, expressed in the said minute."
Under date of April lU, 180.3, the miontes
opinion of Kr. Oora. read as follows :
" Mr. Gore requested that the entry made on
the journals on the 17th of March !a,st by Dr. Swabey, stating
his motives for declining to certify several awards, might be
read; which being done, he observed that in consequence
thereof tbe execution of them had been jiostponed until tbe
present time, beyond which a further delay would be incon-
sistent with public duty and with the rights of tbe claimants,
the justice of whose demands and tbe amount of whose com-
pensation were decided several months since, and waited only
for a certificate, the evidence of what the board had actually
determined, to which no objection of the kind alluded to by Dr.
Swabey appeared to have been made at the time of deciding
their several cases; he therefore declared he could no longer
refrain from proposing that the awards should be definitely
acted upon; at the same time be submitted to the considera-
tion of the commissioners the following remitrks, not wlthont
the hope of obtaining their unanimous consent to the proposi-
tion be was about to offer.
"The convention of the 7th of January 1802, referred to in
ftaid eutiy, avLti\iQX\z^% tti& i;jniHfi\si>.\.c>via\% to ^^ooeed in the
INTEREST. 4315
execution of their duties according to the provisions of the 7th
article of the treaty of amity, etc., except only as to the time
when the awards shall be made payable. Thus the powers
and duties of the board and the rights of the claimants re-
main the same as described in the said article, and as though
its sessions had been continued without interruption, except
only as to the time of rendering its awards payable.
<^ To ascertain the amount of loss and damage sustained by
the capture has always been considered as peculiarly within
its competency, and expressly submitted to the decision of the
majority of its members by the terms of the treaty. Vide Dr.
NichoU's Opinion, recorded in the case of the Betsey^ Furlong,
master.
" The rule whereby interest is calculated is the same now
as was adopted in the year 1797, in the first case decided, and
has been uniformly acted upon both before and since the sus-
pension. Dr. Swabey expressed some doubts on this subject
early aftiT the reassembling of the commissioners, and in August
last, when an award was requested in the case of the PigoUj
Lewis, he declined certifying the same for the reason now ad-
vanced. In this state of the business time was ailbrded to the
British commissioners to consult with their government. After
such consultation the board understood the objection to be
removed, and more than fifty cases were decided to be the sub-
ject of interest, and an award in the case particularly excepted
against was applied for and certified by all the commissioners.
"The rule of the board in ascertaining the amount of com-
l)ensation due has been to add to the value of the property
captured an interest from the time the party might be supposed
to have become possessed of the proceeds had not the voyage
been interrupted, or had the property been restored when the
court, in the judgment of the commissioners, ought to have
restored the same, and not by adding to the amount of com-
pensation to be paid by the British Government the accruing
interest, etc., as stated by Dr. Swabey.
"The two governments respectively promised to make full
and complete compensation for the loss and damage complained
of. Whether the board was or was not in session at any par-
ticular time can not render that a compensation in the one case
which would not be in the other, and to whom or to what it
was owing that its functions were suspended is a subject en-
tirely foreign to its duty to inquire, much more so to impute
the suspension as a fault to one of the high contracting parties,
and for that cause to mulct the citizens thereof and to dis-
charge the other from the pertbrmance of their promise. An
order from His Britannic Majesty in July 1799 directed the
British commissioners to decline attending the meetings of the
board. In consequence thereof its powers were suspended
until February 1802, when an order from the same authority,
directing them to resume their functions, placed the board in
a capacity to execute the oilice assigned to it by the treaty of
4316 INTERNATIONAL ARBITRATIONS.
1704 ; and by a copy of the convention, transmittecl at the same
time, it appears that whatever were the provisions of the sixth
article, full satisfaction was made by one party and accepted
by the other for everything that could have been claimed in
virtue tliereof.
"As the objection made by Dr. Swabey on the 17th ulto.,
and concurred in by Mr. Aiistey on the 22nd, is on a subject
manifestly within the competency of the board to decide, ac-
cording to the letter of the treaty, and expressly so recognized
by its uniform privctice both before and since the suspension,
Mr. Gore declared tliat considerations well known to every
meml>er of tlie board to be of a nature too pressing and impor-
tant to be any longer resisted obliged him to enter his solemn
protest against a further delay in the discharge of that trust,
which all had undertaken to execute with diligence, especially
for the avowed purpose of obtaining opinions which, however
otherwise entitled to respect, -could have no influence on the
minds of the commissioners in the performance of a duty
clearly within their province, and exclusively committed to
them.
*^ He therefore moved that the commissioners do now sub-
scribe the awards ready for their signature.^
Upon this motion being made, Mr. Pinkney
i^-kn ^ ^^^^ ^^^® following opinion, which was entere<l
on the minutes:
** Mr. Pinkney observed that the nature of the motion and
the circumstances connected with it made it proper that he
sliould explain at some length the view he had taken of the
questions involved in it. Tliese (juestions are —
'' 1st. Wliether tlie board is competent, under the treaty and
conventiort, to include in the amount of compensation to be
awarded to claimants, if it shall appear to be just and equita-
ble to do so, interest during the late suspension!
'' 2d. Whether it would be just and equitable to do soT
'^ On the first ([uestion —
'* It is understood that no doubt is entertained as to our
power on the subject of interest generally. The actual doubt
is confined to interest from July 1799, when our proceedings
were interrupted by the interference of the British (lovern-
ment, until the resumi)tion of our duties in January or Febru-
ary 18()2, after the making of the convention. It is not easy
to jiscertain the exact foundation of this extraordinary doubt:
but, so far as I am able to collect it from the entry on the
journals of the 17th of last month, made at the instance of
Dr. Swabey, I understand it to be that the treaty did not con-
template such an incident as this interruption of our ])roi»eed-
ings, and therefore could not intend to authorize the allowance
of interest during that interrui)tion; and moreover that such
intert^st is not the subject of any provision in the convention
INTEREST. 4317
sabseqaently concluded. It is of course supposed to be casus
omisstis.
^^In the examination of this ground (which Dr. Swabey now
admits to be correctly stated) I might certainly decline to per-
plex myself with an inquiry whether the framers of the treaty
did or did not foresee that our progress might be occasionally
suspended by the occurrence of difficulties growing out of the
novel and complicated arrangements contained in the sixth
and seventh articles. It would be sufficient to say that the
assumption of the fact that such a suspension could not be or
was not contemplated at the making of the treaty is purely gra-
tuitous; but I can not forbear to add that, of all gratuitous
assumptions, it is the least suited to the use that has been made
of it, as it is not only highly improbable in itself, but would
be of no imi)ortance in the argument if it were true. It is,
undoubtedly, to ascribe to the makers of the treaty a singular
and most discreditable want of foresight to suppose that it
never occurred to them that obstacles against which no human
wisdom could guard might, in the course of this before untried
experiment, temporarily arrest our proceedings without destroy
ing our functions; and this supposition will appear to be more
peculiarly inadmissible when it is considered that, independent
of the difficulties in America, by which the commission under
the sixth article was constantly embarrassed^ so as that it
might almost be said to be in a perpetual state of suspension,
we ourselves had scarcely assembled in 1796 before our pro-
ceedings in a whole class of cases of the greatest value and
extent were entirely suspended; nor did the interruption cease
until the British Government, in a way which it ought to be
confessed was highly honorable to it, thought proper to direct
its commissioners to go on. Soon afterwards (early in 1798) we
were reduced to a similar predicament in another class of cases
then comprehending the whole, or nearly the whole, of the com-
plaints before us. So that in truth the suspension now in ques-
tion was the third by whi(;h tlie commission has been retarded
since its first organization. Of such an event, therefore, which
this new and delicate scheme of adjustment was naturally to
be expected to produce not once only, but frequently, and
which accordingly it did ])roduce, from time to time, as difficult
topics presented themselves for discussion, it can not be allow-
able to say that it was an incident not in the contemplation of
the treaty, or of those by whom it was framed,
^^But, admitting it to be true that the exact case of a sus-
I)ension was not, at the making of the treaty, contemplated as
a possible incident, does it therefore follow that, if a sus])en-
sion should nevertheless occur, everything connected with it
or arising out of it should, upon our resuming oui proceedings,
be considered as casus omissusf One should rather be dis-
I)Osed to think that, before we could venture upon such a
conclusion, it would be our indispensable duty to go a little
4318 INTERNATIONAL ARIUTRATIONS.
further and examine whether the actual i>rovisions of the
treaty, reasonably interpreted with a proper view to tbair
spirit and object, were sufficiently ample to reach and embrace
the subject so connected with or arising out of the 8usi>en8ionf
^^Tlie seventh article of the treaty is not an arrangement of
detail. It would not have been made if detail had In^n prac-
ticable. Accordingly, after reciting complaints of loss and
damage sustained by the citizens or subjects of the contracting
parties, it submits these complaints without limit or exception
to us. It makes us the exclusive arbiters, not only of thejtuf-
tice of the complaints j but also of tJie amount of compensation to
be paid in each.
"Of what the items of compensation shall consist, or by what
process it shall be ascertained, it does not profess to state. It
declares only that the compensation shall he full and complete,
and leaves the rest to this board, in contidence that it will do
justice; and so far is that confidence carried that, in the cases
submitted to us, our award is declared to be final and conclusive,
** In such a provision it would be vain to search for the traces
of any anticipation of the incidents, to which its execution
might give birth, with any view to the modification of the low-
ers communicated by it. Such modification was incompatible
with itp genius and character. Its prominent feature, which
it would seem to be impossible to mistake, is a clear intention
to authorize the tribunal erected by it, whenHoever and under
whatever circumstances it should be occupied with the claims
committed to it, to deal with those claims according to its own
opinion honestly formed of their title to redress, and the proi>er
measure of that redress. Whether this commission should
endure three years or eight — whether it should proceed with-
out impediment, or at times be prevented from proceeding at
all, were points which the treaty could not settle; but it could
determine, and it has deternjined, in the most explicit manner,
that, when allowed to exert our powers, we should find in them
no deficiency in regard to the justice of any claim regularly
before ns, or the amount of the sum to be awarded. On these
two ])oints, therefore, viz, the justice of a claim within our cog-
nizance and the amount of the compensation so emphatically and
completely referred to us by words of the widest extent and
most comprehensive import, evidently in unison with the whole
plan of the provision itself, there can be no casus omissus in the
treaty.
'' Indeed the correctness of this conclusion is in effect ad-
mitted by those who deny it. They admit that we are empow-
ered to grant interest both before the interval of the suspension
and since. Whence do we derive that power! Certainly not
from any words in the treaty, taking notice of interest eo nomine^
or giving a defined or modified authority on the subject of it
We derive it simply from those words in the treaty, which sub-
mit the amount of the compensation to our decision,
^ "The conceded power, therefore, to give interest on either
side of the suspension, rests upon this, that such a power is
INTEREST. 4319
necessary to enable us to settle the amount of compeiisation
according to our notions of justice and equity. But is not this
reason, undoubtedly the only one that can be assigned in favor
of the power to grant interest before and since the su^ension^
broader than the power itself; and does it not discredit and
falsify the pretended exception ? In other words, does it not,
in all fair reasoning, incontrovertibly prove that we have the
power to grant interest during the suspension as well as before
and after^ such a power being just as necessary, in the one case
as in the other, *to enable us to settle the amount of compen-
sation accordigg to our notions of justice and equity!' It is
quite impossible to avoid the force of this argument otherwise
than by showing that there is an exception of some sort, either
in the treaty or the convention, in regard to this obnoxious
interest, an attempt which would presuppose an abandonment
of the ground of casus omissus in favor of another, still less
capable, if tliat were possible, of being defended. In the treaty^
I think I have already shown that no such exception exists;
iind we shall soon see that it is not to be found in the conven-
tionj whose provisions it is now time to examine.
"The convention directs us to proceed in the execution of
our duties accordimj to the provisions of the seventh article of the
treaty, except only that we are to make our awards payable in
three equal annual installments. Subject to this exception,
therefore, our powers continue to be at least as ample as under
the treaty.
" The convention may be considered as recommunicating in
1802, by reference to the seventh article of the treaty, the pow-
ers originally communicated by that article in 1794, with the
single moditication above mentioned. We have, of course,
the same power now, as formerly, conclusively to fix the amount
of compensation in claims which we have decided to be just.
But we not only have that power (in which it is admitted that
a power to give interest is included) unimpaired, we have it
freed by the convention from Dr. Swabey's objection, even if
that objection was a sound one as applied to the treaty only.
The objection as applied to the treaty does not rely upon the
inadequacy of the language of it to give the power in ques-
tion, but upon a loose inference drawn from a loose speculation
that such an incident as the suspension was not contemplated
by it. Can this objection be transferred from the treaty to the
convention! Manifestly not. The convention was posterior
to the suspension, recites it, and removes it. The suspension
was conseciuently in the contemplation of that instrument.
To whatsoever objection, therefore^ the original communication
of the power in question may have been liable on the supposi-
tion that such an event as the suspension was not then in view,
the recommunication of this power since the sus[)ension and with
particular reference to it must be free from that objection. In
a word, there is not, in my judgment, even the appearance of
a reason for questioning the authority of the board on this
occasion.
4320 IXTEHNATIONA.I. ARBITKATIONS.
" On tbe second question ;
" The x>ower of tbe board to grant tbe interest in qaeation,
being thus, as I think, obvious, I will now say a very few
words on the matter of equity. I have not been able to dis-
cover upon what precise grouuds it in supposed tbat in this
view interest during tlie suspension is distinguishable from
interest be/ore and since. It cau not be upon the naked founda-
tion of a temporary want of capacity in this board, from July
1T99 antil 1S()2, to relieve the clainiauts; for, independently of
the gross absurdity of allowing to sach a fact, singly taken,
so important an influence on the measure of the relief, what
shall we say of interewt from 1793 to 1796, when this board
was not even in existencel If the mere cessation for a sea-
son of oar capacity to act under the treaty renders it anjust
to allow interest during the period of that cessation, surely
the argument is infinitely stronger agaiust the allowance of
interest during a period when we had no official capacity what-
ever; and yet it never occurred to any of us, or to either of
the high contracting parties, that the interest before 1796 was
inequitable. A notion must therefore be entertained that, in
regard to this suspension, some peculiar considerations exist
by which interest during the interval occupied by it ought to
be held to be affected. What those considerations are I am
left to conjecture since they have not been explained,
"It is perhaps imagined that if a claimant should receive
such interest from the British (lovemment, tbe former would
be placed in a better situation and the latter in a worse than
if the suspension had not happened. If thissbonld appear to
be true, I agree that it would be of great weight. It is, how-
ever, so totally erroneous as to be the exact reverse of tbe truth ;
the fa«t is, that the claimant will be a loser and the British
Government agnincr by the suspension, even after tbisinterest
sliall have been paid and received. A very sfaort esaiuination
will make this apparent.
<'As to the claimant. If the suspension bad not taken place,
his complaint, supposing it to be ready for decision, would
have been decided by the board, so as that an award would
have been made in his favor, payable in the spring of 1800,
for principal and interest then due. He loses, of course, by tbe
suspension the u»e, from the spring of 180U, not only of his
principal, but of such interest upon that principal as but for
the suspension would at tbnt time have come to his hands.
To put bin), therefore, iu anything like so good a situation as
he would have been in if the suspension had not occurred, it
would be necessary not only to give him interest upon his prin-
cipal during and after the siRHxienKion, as we propose to do, but
also to give him interest from the spring of 1800 upon the
amount of such interest as the suspension prevented htm from
then receiving. A claimant whose case was ready for decision
will consequently be so far from being a gainer by the suspen-
sion, if the interest iu question be allowed him, that even after
the receipt of t\^a\.Vxitet«%\: Ve^^xW %^\VV WaiIq austaiued aeon-
INTEREST. 4321
siderable loss, for which it is not intended by any member of
this board to give him any compensation at all. In addition
to this, it is to be considered that the claimants, being mer-
chants, are not adequately compensated for the privation of
what ought to have formed a part of their capital, at a time
when commercial capital was more than usually active, by a
retribution granted with a view to the mere rate of interest.
*'The foregoing observations, it is to be admitted, apply
solely to claimants whose cases, in regard to the judicial rem-
edy, were ready for our decision at the commencement of the
suspension, or would have become so in the course of it; and
they apply undoubtedly with less or greater force, according
as the time when the case was or would have been ready shall
be taken to have been late or early. As to the other claimants
(not many in number), they were certainly not losers by the
suspension, for it produced no eft'ect at all upon their claims.
But it must at the same time be seen that, for precisely the
same reason, Great Britain could not be, as to such claims, in
the slightest degree injured by the suspension ; and, indeed, it is
understood to be admitted that, on the footing of equity, the
suspension does not aft'ect these claims in the same manner as
it is supposed to affect the others.
" Let us now see how the account stands on the part of the
British Government.
" Tlie gain of the British Government may safely be affirmed
to be at least co-extensive with the claimants^ loss. In cases
ready for decision, or that would have become so during the
suspension, it has already been shown that it has enjoyed the
use of the claimants' principal by reason of the suspension only;
and if this were the whole benefit it would seem to be obvious
that the suspension rather furnishes an argument in favour of
the payment of interest than the contrary. But the suspen
sion has also given it the use of the claimants' interest due at
the time of it, wliich interest must have been paid in or about
the year 1800, and upon which, if it had been paid, the British
Government would now be paying, as well as upon the prin-
cipal, an annuity to some public creditor. Tlie whole founda-
tion of the argument, then, against the equity of granting
against the British Government interest, during the suspension,
on the claimants' principal is, properly understood, neither
more nor less than that during the interval it has had the use
of both principal and interest^ so far as interest had then
accrued. There can not be a better foundation on which to
grant this interest.
" To what has been said it ought to be added that the British
Government has been benefited by the suspension to a con-
siderable amount in another respect. Large suras have been
recovered by the claimants from the captors during the sus-
pension, which might otherwise have been wholly or in a great
measure lost. The eftect has been greatly to lessen the aggre-
gate of the sums awarded. Upon the whole the suspension is
not an event by which the British Government has suli'ered.
4322 INTERNATIONAL ARBITRATIONS.
or can suffer, so as to create an eqnity iii its favor on tbi
occasion. It hn», on the contrary, been and will contiDDet
be advantageous to it and prejudicial to the claimants, let tbi
questiou be disposed of as it may.
"Iti wbat otlier view tliis subject can be considered, I wi
entirely at a loss to conjecture. We do not, I take it tot
panted, think ourselves at liberty to go into an endless anc
odious inquiry by whose fault, if by any fault, the suspension
was produced. Nor do we, I also Cake it for granted, imagiiu
that, even if such an inquiry could now lead to any result, tbc
utility of that result, as it migbt be made to bear upon tbc
question before us, would make amends for the time and atten-
tion employed upon it. The convention is either a dead lettei
or it has put such an oiI'ensi\'e discussion tbrever at rest both
here and elsewhere; and, if it had not, where are oor means
of agitating it with any hope of arriving at a correct concla-
siouT To endeavor at this late hour to influence either the
sense or the practical operation of the convention by an arbi-
trary and invidious imputation of an antecedent blameavoided,
and therefore rejected, by the conveutitra itself, and which, if
not so rejected, it would now be impossible to tix, would be so
extraordinary and monstrous an irregularity that I am entirely
confident it has not been thought of. The convention has told
us all that it was intended we should know on this subject,
and all that either of the contracting parties can at this time
be t^e to insist uiH>n,vi/, that the suspension was produced by
the immediate act of the Uritiah Government, in consequemre
of difliciilties having arisen iu America, under the sixth article
of the treaty.
" With this character conclusively given to that transaction
by the convention, it would be worse than idle to attempt to
give it another, iu which the presumed misconduct of either of
the two governments should be an ingredient. But give to it
what character j-ou will, and ascribe to it what fault you may,
still, if the situation of the Hi-itish (ioverument in reference to
the claims depending under the seventh article is no worse
than it wouhl have been had not the suspensioif happened, it
is inconceivable in wliat way or uiK>n what intelligible princi-
ples it can be given an equity against those to whom the ens-
pension or its consequences can not be attributed, to whom it
has been so tar from being advantageous that the most liberal
compensation which they are likely to procure will not repair
the injury that they have sustained by it.
" 1 will jnake but one observation more on this subject. If
we should enter into an inquiry whether either and which of
the two governments was in fault as to the snspension; if we
should even be disposed to think, as most certainly some of us
would not, that the Anieri<'an Government was so in fault; if
we should goon to infer tliat then/ore the British Government
was not to pay interest during the susjiension to American
claimants, there would still remain a most embarrassing qaes-
INTEREST. 4323
tion which we shoald find it difficult to settle — i. e., whether
the American Oovernment should pay interest during the sus-
pension to British claimants.
^^To give to British claimants a larger measure of redress in
this respect than we give to American claimants, upon a vague
charge of misconduct against one of the high contracting
parties, for which no countenance is found in the contract
itself, would be to set up a distinction which the convention
does not acknowledge, but disclaims; which the contracting
party, outraged by the accusation, would hold, and justly hold,
to be invidious and arrogant, and which, as regards the inno-
cent complainants, would be too iniquitous for any honest man
to lend himself to.
^^On the other hand, if, withheld by these or other considera-
tions, we should forbear to make the distinction, what will have
become of our principle, or our title to consistency t This is a
dilemma on which I will not enlarge, but on which it might be
well to reflect. It shows the utter inadmissibility of the objec-
tion which, if listened to and acted upon, would produce it"
Mr. Pinkney concluded by seconding the
Finml DeeLdon. motion; but^ at the request of Mr. Trumbull,
it was postponed for a few days, and on the
30th of April the board proceeded to make awards on the
principle contended for by Mr. Gore and Mr. Pinkney.
Previously to the foregoing discussion, the
^'^^L^I^^ ''*'' ^^^^y ^" motion of Mr. Pinkney, prescribed
the following rules for the assessors:
** Instructions to the assessors, October Sy 1802 y confirmed by order dated Decem-
ber 8."
" Ordiredy That Mr. Cabot/ assisted by the secretary of the board, sub-
join to such of the reports of MeHsrs. Cabot and Glenoie as have been
examined and approved au estimate of the> interest, at the rate of 6 per
cent, to be included in the amoant of compeuMation to be awarded accord-
ing to the following rules, viz:
'' Upon sums allowed in the said reports for the net value of the cargo
and adventures interest is to commence from the time when such value
would probably have been receive<l— i. e., from the expiration of three
months after the probable time of arrival at the port of destination. The
same rulo is to be applied to sums allowed for the value of the vessel, for
freight, for demurrage, and for costs and expenses incurred, or disburse-
ments of whatsoever kind, made before the expiration of the said three
months.
*' Upon Bums allowed for costs and expenses incurred after the expira-
tion of the said thre<' months, and actually paid by the parties or their
' ** ThiH duty afterward assigned to Mr. Petrie, the other assessor. The
tifth commissioner made the calculation of interest in all cases awarded
prior to the suspension.^'
5627— VOL. 4 09
4324
INTERNATIONAL ARBITRATIONS.
agi'tits (not influiliiig BU<'h as hiive beon paid by tlie Government of ti
Unltdl Sliites), auil )^neratly for all diaburnemetiU of wbatao«v«r kii
actually niiide )iy tliu oaid parties or tbeir ageata after the expiiatioD
tbe xaid three luoiitha, intcreat is to commence fyom the time of the r
pendituro, except unly when the iteiiiB of expeadituTA cooatituting oi
gL-nent) rbargo hnvi' difiereot dnt«N tiot greatly distant from each otbr
iu which cuHe tlio latest date shall be taken.
"Thu sum in every award being pnyablr, according to the Iste cohtfi
tioQ, in tlirou eiiual auniial installments, the first whereof will be due o
the IFith day of July 1W3, tbe sums reported are to be divided iol
thirds, and interest ia to bo ostimated ou one of these thirds to th« tini
when Iho first iantnltment is payable ; on another of theae tbinla to th
time n-faen tliu second installmeut is payable, and so on of the other third
Jind tho results of each estimate being added together and to the whol
princi|ia], the totul is again to be divided into thirds aa the iiMt«lImonta o
the awurd.
" Whatever sun-.e have l>eoD received from tbe capton or the Britasl
(jovemment lire to be eredited at the times of payment, by dedoetini
tbeni from tho principal and interest then due, and tbe &rther calcnlatloi
uf intorust is to lie made on ttie balanee only.
" Where- tho ves-tel iiiiil cargo belong to different elaimant*, and genei
ally where thoru are several claimants not partners in tr»de, havlnj
interests which it inny be perfectly practicable and convenient to separ
ate. diitinct outi-nlaliiinH are to be made for the share of every snel
claimant.
" The estimstcH are to be so reported that it may be apparent that thi
foregoing rules have been observed,"
'■Ordrr rtupeeting aieardt, October U, ISO!.
"Ordered, lliat in future tho awanls shall not be entered at large on thi
miuntes, but shall only be so cnterrd in a book to be kept for tbat pur
piwe. TliL- secn-tiiry is. however, to stute in tbe minutes the actnal mak
ing of ]ill awarits, the name of tho case, tbe sum awarded, and the manuei
in whii'h and tho person to whum the same is payable."
"Order retprcliiig atsentora reportt, Janiiiify 24, IS03.
'Ordered, That the reportH and seheilnles of tbe assessors of the board u
Anally apjiroved uud aetcil tipiin, as aIho their subsequent eetimatea, ex
hibiting the );roBs amount of the principal and interest of compensation
and tho distribution of tho same into iuHtallmonts in all oases in wbici
awards have boi-n or shall lie mailo siui'o the reassembling of the boari
iu February, IBtfJ, be recorded in a book."
A question aroHO as to wbat rate of iuteresi
■exioan^^mniis- should lie allowed Oil tbe sum of »6,600, whict
the Mexican coiuiiiiBsioDere iiad ooncnrred it
awardiug to an insurance company to reimburse it for moDeyi
paid ou tbe brig Brazuria, which waa seized by the Mexicai
INTEREST. 4325
aathorities in 1832 and tben abandoned by tbe owners to tbe
company. The American commissioners proposed G per cent,
tbe Mexican 5, Tbe ampire, Jnly 10, 1841, allowed 5 per cent.
Jackson Maritime Insurance Company of New Yorkv, Mexico: Commission
nnder the conTention between the United States and Mexico of April 11,
1899.
Tbe sbip Louisaj tbe property of citizens of
Caseofthe^'Loniia." tbe United States, was seized at Acapulco in
January 1821, by order of Iturbide, for tbe use
of tbe Mexican Government; and botb tbe sbip and tbe cargo
were in like manner ordered to be paid for. Only a part of tbe
money, bowever, was paid, and for many years tbe owners
fruitlessly prosecuted a claim for tbe remainder. Tbeir claim
baving been submitted to arbitration, tbe American and Mexi-
can commissioners agreed to award a certain sum as damages
resulting from tbe taking of tbe sbip and cargo, and also to
award tbe sum of $7,750 for tbe expenses incurred by tbe
claimants in Mexico in tbeir efibrts to obtain payment of wbat
was due tbem. On tbe former sum tbe commissioners allowed
interest at 5 per cent from tbe time tbe principal first became
due, but tbey differed as to tbe allowance of interest on the
award for expenses. Tbe umpire, April 9, 1841, "discharged"
the Government of Mexico ** from tbe demand of interest on
tbe said sum of $7,750."
Commission under the convention between the United States and Mexico
of April 11, 1839.
In 1828 Pardon C. Green, a citizen of the
Green's Cam. United States, advanced a sum of money to
tbe captain of the Mexican war brig Hermon,
which bad put into Key West, Florida, for repairs and sup-
plies. The commissioners unanimously allowed interest at 6
per cent on the sum advanced, that being tbe legal rate in
Florida at the time of tbe advances.
Hetty Greeny adminieiratrix of Pardon C, Green, v. Mexico: Commisnion
under the convention between the United Statefi and Mexico of April 11,
1839.
A claim was made for tbe amount of customs
Biaonm's Case, duties overcharged by tbe Mexican authorities
at Mazatlan on tbe cargo of an American brig.
The American commissioners awarded the sum demanded,
with interest at 5 per cent from January 3, 1835, when the
4326 INTERNATIONAL ARBITRATIONS.
excess was paid. The Mexican cominissiouers concarred in
the award of principal, but refused to allow interest. The
umpire adopted the award of the American commissioners.
Jane Slacum, executrix of William A, SlacuMf v. Mexico: CommisBion under
the oonveution between the United States and Mexico of April 11, 1839.
William Richardson, owner of the brig
^"*A»r^f^M9 ^^ ^^^^yj pi'esented a claim to the mixed com-
mission under the convention between the
United States and Mexico of April 11, 1839, for damages for
the sale of the brig, under the decree of a Mexican court, to pay
certain lines levied upon her for violation of the Mexican
custom laws. The claim for damages was disallowed by the
umpire; but it was suggested by the American commissioners
that Eichardson had a valid claim against Mexico for the excess
of what the brig brought over ami above the amount of the
fines, and that this claim was not passed upon by the mixed
commission. It was afterward laid before the commissioners,
Messrs. Evans, Smith, and Paine, under the act of 1849, who
said:
''In the progress of the cause before the mixed commission
the Mexican commissioners, though denying totally the Justice
of the claim then under consideration, admitted that the claim-
ant was entitled to the amount for which the brig was sold,
less the fines, to pay which the court rendered the decree of
sale, and that this sum, without interest, was all that the claim-
ant could properly demand. It is for this sum that the claimant
now presents his claim and demands interest thereon from
August 1837, the date of the sale of the vessel. Ought interest
to be allowed! It is a principle of law well established that
upon a deposit of money, either by the owner, or for his use by
another, and more especially by virtue of a judgment or decree
of a court, interest can not be demanded unless by contract,
or unless it be proven that the party with whom the deposit
was made had used it. It is not pretended in this case that
there was any contract for interest or for the use of the money
out of which a (?laini for interest could arise. A demand on the
part of the claimant for the money admitted to belong to him,
and a refusal to pay, would have entitled him to interest from
the date of such demand, but it is not alleged or proven that
any such demand was ever made. On the contrary, the evi-
dence shows that the claimant and his agent abandoned such
demand and insisted on heavy damages for a tort. There is
not even an allegation made by the clainmnt, nor is there an
attempt to prove, that the money to which he is entitled has
not been at all times ready in the Mexican court to be paid over
to him when applied for. From all the evidence in the case
interest: 4327
the board is constrained to consider that the claimant now for
the first time has demanded payment, and consequently that
he is entitled to receive the principal money as claimed, without
interest"
Certain property belonging to citizens of
^^ 1871 "^* *^® United States was seized and sold by the
authorities in Cuba as the property of a
Sx>anish subject who was charged with being a rebel. Sub-
sequently the Captain-General of the island ordered the pro-
ceeds of the sale to be paid to the American owners, less a
certain amount that had been paid out on a claim against
the property. The owners, who claimed what they alleged
to be the value of the property, refused to accept the sum so
decreed and appealed to the commission under the agreement
between the United States and Spain of February 12, 1871.
The arbitrators differing in opinion, the umpire awarded the
claimants the sum ordered to be paid to them by the Cap-
tain-General, and refused to allow interest on the following
grounds:
'' As early as March 1872, by decree of the Captain-General
of Cuba, the sum of $13,600 was ordered to be paid to the
claimants. This amount the claimants did not accept, and,
throuj^h the United States Government, presented their claim
to this commission for a larger sum.
" It will also be noted, as ffoiiig to the equities of any claim
for interest, that, as asserted on behalf of Spain, the closing
of the case could haveLbeen compelled before September 1872,
according to the rules of the commission. No cause is shown
to explain or Justify, as required by the rules, the long delay
which has been suffered to accrue. It is my 0])inion that an
unexplained delay of eight years is far in excess of tbe reason
able i)eriod contemplated by the convention, and by the rules
for the closing of claims before this commission. Such a delay
could not be forced upon the claimants against the will of the
United States Government. This circumstance, coupled with
the decree ordering in March 1872 the payment of the sum
since finally awarded to the claimants, makes it improper that
interesf should be <*liarged against Spain."
Baron nianr, umpire, April 16, 1880, i'oung, Smith <f- Co. v. Spain, No.
96, Spanish Claims Commission, agreement of February 11-12, 1871.
The commission ordinarily allowed interest
1871^"*^°'^ at the rat<j of G per cent per annum from the
date of the injury to the anticipated date of
the final award.
American and Hritish Claims Commission, treat}*^ of May 8, 1871, Article
XII., Hale's Report, 21.
CHAPTER LXXII.
MISCELLANEOUS CASES.
Eagene L. Didier, administrator, et al., as
Case of D'Arey * leg^i representatives of the firm of D'Arcy &
waier. !>*»• «J Didier ^nd Thomas Sheppard, citizens of the
Commeiii06iii6nt of n 7
a Bute. United States, presented a claim against Chile
growing out of two contracts made in 181(> be-
tween General Jose M. Carrera, the duly authorized repre-
sentative of the republican government of Chile, and D'Arcy
& Didier and Thomas Sheppard. The nature of the contracts
it is needless to examine, as no question was raised on that
subject.
The agent of Chile demurred to the memorial on the ground
that Chile was at the time when the contracts were made a
Spanish colony, and that consequently the commission had no
jurisdiction of the claim. He stated that the independence of
Chile was recognized by the United States in January 1822,
and by Great Britain two years afterward.
The agent of the United States, a])art from technical argu-
ments as to what was admitted by the demurrer, urged that
the acknowledgment of the independence of Chile by the
United States in 1822 related back to the beginning of the
Carrera government in 1811.
A majority of the commission, Messrs. ClaparMe and Gana,
rendered the following decision :
" Considering :
*' 1st. That it being judicially acknowledged that the recog-
nition of Chile by the United States of America took place in
1822; that until that date Chile was de jure under Spanish
domination so far as concerned the United States; that it is
only from sucb period that legal international relations be^an
between the two countries signing the convention concluded
in Santiago, August 7, 1892;
^^2d. Thatu]>on signing said convention the United States
of America and the liex)ublic of Chile, animated by the desire
4329
4330 INTERNATIONAL ARBITRATIONS.
to settle and adjust amicably the claims made by tbe citizens
of either country agaiust the governmeut of the other, had
not in view any claims arising out of the period prior to the
recognition of the Government of Chile by that of the United
States of America, and before the establishment of legal inter-
national relations between the two nations;
"3d. That if their intention had been to extend the juris-
diction of the convention of Santiago to a period prior to the
recognition of the Republic of Chile by the United States, such
intention would have been expressly indicated in said conven-
tion, which has not been the case;
" 4th. That the contracts upon which the memorialists base
their claim, according to their own allegations, were signed on
October 31 and November 18, 181G, by the house of D'Arcy &
Didier on the one part, and General Carrera on the other
part — that is to say, several years before the recognition of the
Bepublic of Chile by the United States of Ameiica;
" Declares :
" That the demurrer submitted to its decision by the honor-
able agent of the Republic of Chile is sustained, and the claim
is not within its jurisdiction."
Mr. Goode dissented. Apart from the contention that the
demurrer admitted the allegation of fact in the memorial that
there was a republican government of Chile in 1816, he said
that he understood it to be a sound principle of international
law that when a government was once recognized as independ-
ent, such recognition related back to the beginning of its ex-
istence, and that it would seem to follow that the government
of the Republic oi Chile was the legitimate and responsible
successor of the republican government' of Chile of 1816 and
earlier.^
A motion for a rehearing was filed, and on this motion briefs
were submitted and oral arguments made, in which the ques-
' Mr. Goode, in the course of his opiniou, said : "We learn that although
no formal declaration of independence was made at the commencement of
the revolutionary movement, on the 18th of September 1810, a junta waa
formed on November 15, 1811, which exercised all the functions of govern-
ment; that it promulgated a constitution in the latter part of 1812, estab-
lished a school system, organized an army, and enacted laws through its
regular legislative assembly. It appears that after the disastrous battle
of Rancagua, on October 1, 1814, the patriots were not able to renew hos-
tilities until they had organized "the army of the Andes," which was
formed in part of the soldiers who had fought at Rancagua; that with
the army thus organized they fought the battle of Chacabuco on the 12th
of February, 1817, and achieved a decisive victory ; that the independence
of Chile was proclaimed one year later, on the 12th of P^ebruary 1818, and
recognized by the United States in .January 1822.'*
MISCELLANEOUS CASES. 4331
tion of the beginning of the Eepublic of Chile was fully dis-
cussed. Counsel for the United States, contending for the
liability, of Chile, cited Williams y, Bruffy^ 96 U. S. 176; United
States V. Trumbull, 48 Fed. Rep. 94; United States v. PrioleaUy
:^r> L. J. C. H. N. S. 7; Kent's Coinm. I. 25; Phillimore, Int.
Law, I. 171; Vattel, book 2, ch. 12, see. 191; Grotius, book 2,
chap. 9, sec. 8. He argaed that September 18, 1810, had always
been celebrated in Chile as independence day ; that Leon Levy,
Int. Law, 72, says: "Chile declared her independence of Spain
September 18, 1810; the declaration of indei)endence of Janu-
ary 1, 1818, refers to the revolution of 1810;" that O'Higgins's
manifesto of May 15, 1818, declared: "Chileans, the eighth
year of our revolution will be forever memorable;" that Theo-
dorick Bland, in his report of November 2, 1818, states, among
Chile's expenses: "Six debts contracted by the state in 1814,
$12,700," etc.
The agent of Chile contended that the debts contracted prior
to the organization of the government and prior to it^ recogni-
tion by other countries were not debts and liabilities for which
the new government became responsible, unless special i^ro-
vision was made therefor, citing the history of the United States
in making provision for the payment of the debts of the Con-
federation ; and reasserted that the liepublic of Chile for all
international purposes dated from its recognition as a sover-
eignty by other nations, and, therefore, that the liability of
Chile under the treaty was limited to acts committed by its
civil or military authorities since its recognition by the United
States.
On the motion for a rehearing, Messrs. ClaparMe and Gana
rendered the following final decision:
" 1. That this commission is clothed by the convention of
August 7, 1892, with judicial faculties to decide finally the
claims to which that convention refers.
"2. That as a judicial body the exclusive fjujulty, inherent
in its nature, of determining its competency and jurisdiction
in the cases that might be submitted to it rests entirely in its
discretion.
" 3. That it is not a necessary condition precedent to the
decision of the tribunal on the question of jurisdiction that
the grounds on which the decision is based should have been
argued by the parties.
"4. That the convention of August 7, 1892, having been
concluded between the United States and the Republic of Chile
to settle the claims that under certain conditions the citizens
4332 INTERNATIONAL ARBITRATIONS.
of one couutry miglit present against the government of the
other, without determining the period within which the acts
giving birth to such claims occurred, it is not possible to ex-
tend the period beyond the date at which, through a formal
declaration of the L^nited States made in 1822, Chile ceased
to be, as far as the United States were concerned, a colony of
Spain, in order to become from that date an independent
state.
'^ 5. That were this commission to extend its jurisdiction to
a period prior to the existence of Chile as an independent
state it would per force admit an entirely diiferent judicial
))osition, since in that period Chile was not an international
entity, but was de jure a colony of another independent state.
'M). That accepting this uncertain situation, which is gov-
erned by elements and rules of another order, the tribunal
would not find a fixed point for the determination of its juris-
diction.
'^ 7. That the opinions of the authors cited by the claimants
have no ap]>li(*ation to this case, as they tend to establish the
liabilities of a government respe(;ting the acts of its predeces-
sors as independent states, while what this commission has
established is that the convention of August 7, 1802, between
the United States and the Republic of Chile, must not be in-
terpreted in a sense that would extend it beyond the date of
the rec^ognition of Chile as an independent state capable of
contracting rights and obligations in conformity with interna-
tional law.
*' 8. That it is not a principle accepted by the best recog-
nized opinions of autiiors on international law, as is alleged,
that the recognition of a new state relates back to a period
prior to such recognition.
'* For tliese reasons, and without considering for the present
whether the terms of the convention of August 7, 1892, and
the rules of this commission admit of a motion for a rehearing,
such as the one under consideration, the majority of the com-
mission decides to deny this motion and declares that the
decision to which it refers shall stand."
Mr. Goode dissented, saying that he adhered to the views
previously expressed by him.
Uuited States and Chilean Claims Commission, convention of August 7,
1892, Shields's Keport, 41 : Eugene L, Didier, adm. et al., v. ChiU, No. 5.
By section 5 of the act of tTune 5, 1882,
Case of the " Allega- i. \ ^' \ > ^li-i 4, c r^ •• x
.„ _. . J* - reestablishing the Court of Commissioners ot
nean i Jslxtent 01
Territorial Waters. -^^^^/^^'^'^^ Claims, it was provide<l that the tri-
bunal slioukl receive and examine certain
classes of claims, among which were '' claims directly result-
ing from damage done on the high seas by Confederate cruis-
ers during the late rebellion, including vessels and cargoes
MISCELLANEOUS CASES. 4333
attacked on the high seas, although the I088 or damage
occurred within four miles of the shore."
lu the case of Stetson v. The United States^ No. 3993, class 1,
a claim was made uuder this clause for the destruction of the
ship Alleganean in the Chesapeake Bay. The question wad
thus raised as to whether the Chesapeake Bay was to be con-
sidered as a part of the ^^ high seas " in the sense of the act,
or whether it was to be considered as a part of the territorial
waters of the United States. The opinion of the court, as
delivered by Draper, J., is given below :
'^The facts upon which a judgmenttotheamountof $69,334.80
is prayed for in this case are substantially as follows :
*'The ship Alleganean duly registered at the port of New
York, and being recently repaired and well equipped and en-
titled to the protection of the United States, cleared with a
cargo from the port of Baltimore on the 22d of October 1862
upon a voyage to London. Six days later, at about 10.30
o'clock in the evening, being at anchor, in rough water in
Chesapeake Bay, south of the mouth of the Kappahannock
River and opposite Guinn's Island, she was boarded by some
eighteen officers and men of the Confederate navy, commanded
by Lieutenants John Taylor Wood and S. Smith Lee. These
leaders were commissioned officers in the Confederate navy,
and in the attack upon the AU^anean they were acting under
the special orders of the secretary of the navy of the Confeder-
ate States, and the men accompanying them had been specially
detailed from the James Kiver squadron for the puri)08e of
preying upon Uuited States merchant vessels in Chesapeake
Bay. They came overland to the Chesapeake Bay from the
PatricTc Henry ^ an armed and commissioned Confederate vessel,
and securing two or three small vessels — the largest being of
fifteen or twenty tons burden — had been cruising about two
or three nights before the attack. The precise relationship
which these vessels bore to the Confederate navy is left by the
evidence in some doubt.
" Lieutenant Wood says of the vessel in which he operated :
^ She was a boat fitted out for this puri)ose, and attac^hed to
the sciuadron as a tender. "She was about fifteen or twenty
tons, armeil as customary with this class of boats. • • •
The tender which I commanded was one belonging to a regular
commissioned ship of the Confederate States navy.'
^< Lieutenant Lee says: 'We had two small boats that we
obtained on the bay shore, with sails, and a sailing skiff we
4334 INTERNATIONAL ARBITRATIONS.
captnre<l from two ITiiion men. No boats were brought from
Kichincmd or from any Confederate (^raiser.'
^^ There is no proof, and it was not contended upon the ar-
filament, that they were either Mn commission' of or that they
l)ore letters of marque from the Gonfedeitite government, bat
there seems to be ample evidence that the crews were a part
of the naval forces of that government attached to duly com-
missioned, armed war vessels, and now only temporarily de-
tached therefrom, and coming directly from such a vessel for
this special service under orders of their secretary of the
navy. These small boats seem to have carried no armament
Lieutenant Wood says ^the vessels were armed as customary
with this class of boats/ and that < the men were armed and
equipped as man-of war's men.' Lieutenant l..ee says Hhe ves-
sel carried no guns, but the men were armed with cutlasses
and pistols.'
"This force boarded the Alleganean^ as stated, speedily re-
duced the crew of that vessel to subjection and the state of
prisoners of war, and then burned the ship, totally destroying
her, ex(»ept that some few remnants were afterward picked up
and disi)osed of, the proceeds of which the owners account for
in making up their claim.
"The value of the AUvgmiean at the time of loss is placed by
the marine experts on behalf of tlie government at $52,591.03,
and by the witnesses for the claimants at amounts varying
from 8r»0,0()() to $75,000.
" The evidence seems to establish beyond question the fact
that the vessel was more than four miles from any shore at the
time of capture and destruction.
"The claimant's c(mnsel, with his case as exhaustively pre-
pared and as fuHy and ably argued as any which has been
before this court, contends that these facts establish a right
to a judguient, as of the first class, under the provisions of
section 5 of the act of June 5, 1882, being a claim * directly re-
sulting from damage done on the high seas by Confederate
cruisers during the iate rebellion, including vessels and cargoes
attacked on the high seas, although the loss or damage occur-
red within four miles of the shore.'
"The learned counsel on behalf of the United States insists
that the claimants ought not to recover —
" First. Because all the waters of the Chesapeake Bay, even
such as are more than a marine league from shore, are terri-
torial waters of the United States, and subject to the exclusive
MISCELLANEOUS CASES. 4335
eoutrol and jurisdiction thereof, and that in consequence the
Alleganean was not attacked nor the damage done on the 'high
seas' within tlie meaning of the term as used in the act under
which judgment is claimed.
"Second. Because the persons who destroyed the ship and
the vessels employed by them did not constitute a 'Confederate
cruiser' within the meaning of that term as used in the statute.
"The term 'high seas,' as used by legislative bodies, the
courts, and text writers, has been construed to express a widely
different meaning. As used to define the jurisdiction of ad-
miralty courts, it is held to mean the waters of the ocean
exterior to low- water mark. As used in international law, to
fix the limits of the open ocean, upon which all peoples possess
common rights, the ' great highway of nations,' it has been held
to mean only so much of the ocean as is exterior to a line run-
ning parallel with the shore and some distance therefrom,
commonly such distiince as can be defended by artillery upon
the shore, and therefore a cannon shot or a marine league
(three nautical or four statute miles). This court, after very
able argument by learned counsel and after much deliberation,
has held that the term was used in the act of June 5, 1882, in
the same sense in which it is employed by the international
law writers. {Rich v. Vnited States.)
" From this it necessarily follows that such portions of the
waters of Chesapeake Bay as are within four miles of either
shore form no part of the high seas. But much of the bay is
more than four miles from shore, and is accessible from the
ocean without coming within that distance of the land. The
distance between Cape Henry and Cape Charles, at the en-
trance of the bay, is said to be twelve miles, and it is stated
that lines starting from i)oints between the capes, four miles
from each, and running up the bay, that distance from either
shore, would not intercept each other within 12.1 miles from
the starting points. The evidence shows that the Alleganemi
was anchored between such lines at the time of destruction.
Was she upon the high seas as the court defines the statutory
term?
"By common agreement all the authorities assert that there
are arms or inlets of the ocean which are within territorial
jurisdiction, and are not high seas. Sir R. Phillimore (1 Int.
Law, § 200) says :
"'Besides the rightsof property and jurisdiction within the
limit of cannon shot from the shore, there are certain x)ortions
^
4836 INTEKNATIONAL ABBITRATIONR.
of the sea which, tlioagh they exceed this verge, may under
special circamstanci^s be prescribed for. Maritime territorial
rights extend, as a general mle, over arms of the sea, bays,
gulfs, estuaries which are inclosed, but not entirely sur-
rounded, by lailds belonging to one and the same state.
• • • Thus iireat Britain has immemorially claimed and
exercised exclusive property and jurisdiction over the bays or
l)ortions of the sea cuit oflf by lines drawn from one promontory
to another, and called the King's Chambers.'
'Klrotius (bk. 11, ch. 3, §§ 7, 8) and Vattel (vol. 1, bk. 1, ch.
23, § 201 ) assert substiintially the same doctrine, and the later
writers follow them. Wheat. Int. Law (Dana's 8th ed. p. 255)
«aye :
'"The maritime territory of every state extends to the
)>orts, harl)ors, bays, mouths of rivers, and adjacent parts of
the sea, inclosed by headlands, belonging to the same state.
The usage of nations sui)eradds to this extent of territorial
jurisdiction a distance of a marine league, or as far as a cannon
shot will reach Irom the shore, along the coasts of the state.
Within these limits its rights of property and territorial juris-
diction are absolute, and exclude those of every other nation.'
''Chancellor Kent avows the general doctrine and makes
very much broader claims in reference to the jurisdiction of
the United States over adjacent waters, and says (Com. vol. 1,
pp. 29, 30) :
" 'Considering the great line of the American coasts, we have
a right to claim for liscal and defensive regulations a liberal
extension of maritime jurisdiction; and it would not be unrea-
sonable, as I apprehend, to assume for domestic purposes con-
nected with our safety and welfare the control of waters on our
coasts, though included within lands stretching from quite
distant headlands, as, for instance, from Cape Ann to Cape
Cod, and from Nantucket to Montauk Point, and from that
point to the ca])e8 of the Delaware, and from the South Cape
of Florida to tlie Mississippi.'
"Dr. Wolsey (Int. Law, § CO) upholds the general doctrine,
but thinks the claims of Chancellor Kent are too broad, and
rather 'out of character for a nation that has ever asserted the
freedom of doubtful waters, as well as contrary to the spirit of
more recent times.'
"Dr. Wharton (Int. Law, § 192) finishes the subject with the
concjlusion : 'That it would seem more proper to adopt the test
of cannon shot, • • * which would, in case of waters
whose headlands belong to the same sovereign, exclude all
bays more than eighteen miles in diameter, assuming the
range of cannon shot to be nine miles. But this should be
MISCELLANEOUS CASES. 4337
made to yield to usage. If a particular nation has exercised
dominion over a bay, and this has been acquiesced in by other
nations, then the bay is to be regarded as belonging to such
nation.'
"We are quite certain that none of the American courts
have passed upon this subject, although decisions holding
that specified waters are within or without the jurisdiction of
the admiralty courts are numerous. The question has, how-
ever, been before the English courts upon two occasions at
least.
" Reg. v. Cunningham^ Bell Crown Gas. 72, was the case of a
crime committed upon an American vessel lying in the Bristol
Channel, about three-quarters of a mile off' the shores of the
county of Glamorgan, in Wales, but below or exterior to low-
water mark, and perhaps ten miles from the shores of the
county of Somerset, in England. The prisoners were indicted
and tried in Glamorgan. The question was^whether the crime
was committed within the county of Glamorgan or upon the
high seas. It was held that it was within the county. The
crime was committed, it is true, within the marine league from
shore, but the court did not rest its conclusion upon that
ground. Lord Chief Justice Cockburn, delivering the opinion
of the court, said :
" ^ Looking at the local situation of this sea, it must be taken
to belong to the counties, respectively, by the shores of which
it is bounded. • • • The whole of this inland sea, between
the counties of Somerset and Glamorgan, is to be considered
as within the counties by the shores of which its several parts
are respectively bounded.'
"But perhaps the most thoroughly considered and important
case is that of Direct U. 8. Cable Co. v. Anglo-American Tel. Co.
in the House of Lords. (2 App. Cas. 349.) It came up on an
ap])eal from the supreme court of Newfoundland against an
order confirming an injunction preventing the Direct Cable
Company from landing their wire upon the soil of Newfound-
laud, on the ground that it would be an infringement of the
rights of the Anglo-American Company. The cable, as a mat-
ter of fact, was buoyed in Conception Bay, more than a marine
league from shore, and it nowhere came within that distance
from the shore, purposely to avoid coming within territorial
jurisdiction. But it was asserted that the whole of Conception
Bay was within the territory and jurisdiction of Newfound-
land. The supreme court of the province so held, and the
43518 INTERNATIONAL ARBITRATIONS.
detx'riiiiiiation was upheld by the Honse tyf Lonls in a soiue-
what ehiborate opinion.
'*Thi8 opinion states that Conception Bay is a body of water
having an average width of fifteen miles, a distance of forty
miles from tlie head to one of the capes at the entrance and
fifty miles to the other, and a distance of twenty miles between
the headlands. Coming to the question, the Lords say (p. 419) :
*'-\Ve tind a universal agreement that harbors, estuaries
and bays, landlo<;ked, belong to the territory of the nation
which possesses the shores round them, but no agreement as to
what is the rule to determine what is a ''bay" for this purpose.
It seems generally agrecnl that where the configuration and
dimensions of the bay are such as to show that the nation
oc4*upying the adjoining coasts also occupies the bay, it is a
part of the territory; and with this idea most of the writers on
the subject refer to defensibility from the shore as the test
of occupation ; some suggesting, therefore, a width of cannon
shot from shore to shore; some a cannon shot from each shore;
some an arbitrary distance of ten miles. All of these are rules
which, if adopted, would exclude Conception Bay from the
territory of Newfoundland, but also would have excluded from
the territory of (ireat Britain that part of the Bristol Channel
which in Rr<j. v. Cunningham was held to be in the county of
Glamoi'gan.
'* *lt does not api)ear to their lordships that jurists and text
writers are agreed what are the rules as to dimensions and
configuration, which, apart from other considerations, would
lead to the conclusion tliat a bay is or is not a part of the ter-
ritory of the state possessing the adjoining coasts, and it has
never, that they can find, been made the ground of any judicial
determination. If it were necessary in this case to lay down
a rule, the dilliculty of the task would not deter their loixlships
from attempting to fulfill it. But in their opinion it is not
necessary. It seems to them that in point of fact the British
Government has for a long time exercised dominion over this
bay, and that their claim has been acquiesced in by other
nations. ♦ ♦ * This would be Very strong in the tribunals
of any country to show that by prescription this bay is a iiart
of the exclusive territory of (ireat Britain. In a British tri-
bunal it is decisive.'
*^ We nmst now examine the local circumstance touching the
status of Chesapeake Bay, and then determine whether those
waters should be held to be the open ocean or jurisdictional
waters of the United States in the light of these authorities. •
•'The headlands are about twelve miles apart, and the bay
is probably nowhere more than twenty miles in width. The
length may be 200 miles. To call it a bay is almost a mis
MISCELLANEOUS CASES. 4339
noiner. It is more a mighty river than an arm or inlet of the
ocean. It is entirely encompassed about by our own territory,
and all of its numerous branches and feeders have their rise
and their progress wholly in and through our own soil. It can
not become an international commercial highway; it is not and
can not be made a roadway from one nation to another.
''The second charter of King James I. to the Virginia Com-
pany in the year 1(>09 granted : 'All those lands, countries, and
territories situate, lying, and being in that part of America
called Virginia, from the point of land called Cape or Point
Comfort, all along the seacoast to the northward 200 miles,
and all along the seacoast to the southward 200 miles, and all
that space and circuit of land lying from the seacoast of the
precinct aforesaid up into the land throughout from sea to
sea, west and northwest, together with all the soils, grounds,
havens, ports, • • • rivers, waters, fishings, etc.'
'' This language would seem to place Chesapeake Bay within
the boundary lines of Virginia. A line running north (as near
as may be) from Point Comfort along the seacoast crosses the
mouth of the bay from Cape Henry to Cape Charles.
"By the King James charter to Lord Baltimore in 1632,
erecting the territory of Maryland, the southern boundary line
is made to cross Chesapeake Bay from Smiths Point, at the
mouth of the Potomac River, to Watkin's Point, on the east-
ern shore, which apparently places a portion of this bay within
the territory of Maryland. Had this not been intended, the
boundary would presumably have followed the shore line
around the bay.
''It is a part of the common history of the country that the
StJites of Virginia and Maryland have from their earliest terri-
torial existence claimed jurisdiction over these waters, and it
is of general knowledge that they still continue so to do.
"The legislation of Congress has assumed Chesapeake Bay
to be within the territorial limits of the United States. The
acts of July 31, 1789, ch. 5; August 4, 1790, ch. 35; and March
2, 1799, ch. 128, § 11, establishing revenue districts, provided
that 'the authority of the officers of the district {Norfolk to
Portsmouth) shall extend over all the waters, shores, bays,
harbors, and inlets comprehended within a line drawn from
Cape Ilenry to the mouth of James River.' By section 649,
Kev. Stat. U. S., the eastern judicial district for Virginia em-
braces the 'residue of the State' not included in the western
5627— VOL. 4 70
4840 INTERNATIONAL ARBITRATIONS.
diHtrict. The boundaries of the State include all of Ohesa-
)M^:ike Bay south of a line ranniug from Smiths Poiut to
WatkiiiH Point, and hen<*e the eastern district mast embrace
so much of the bay.
^<The ]>ositiou taken by this government and by England
and Frani^e in the matter of the British brig Orange^ captmred
in Delaware Bay in 1793 by the French steamer PEmbuscade
(1 Am. Stsite Papers, 147, 149) has, it seems to us, an impor-
tant bearing ui)on the qaestion under discussion. The brig
waH seized and the crew made prisoners, the two foreign gov-
ernments being at war. The British Government must have
demanded that the United States compel France to release
the captured vessel on the ground that the seizure was unlaw-
ful as having been made in our territorial and neutral waters.
The State Papers do not show this demand, but it is not ma-
terial. The opinion of the Attorney-General was asked, and
was given somewhat elaborately by Mr Randolph. (1 Op.
Att'ys-den'l, .S2.) It quotes the text writers, and concludes
that the whole of Delaware Bay is within the territorial juris-
diction of the United States, regardless of the marine league
or cannon shot limit from the shore. The learned Attorney-
General says : ' In like manner is excluded every consideration
of how far the spot of seizure was capable of being defended
by the United States; for although it will not be conceded
that this could not be done, yet will it rather a))|)ear that the
mutual rights of the States of New Jersey and Delaware up
to the middle of the river supersede the necessity of such an
invest ij^at ion. No. The corner stone of our claim is that the
United Stiit^is are ])roprietors of the lands on both sides of
the Delaware from its head to its entrance into the sea.'
"Acting upon the opinion of the Attorney-General, the Sec-
retary of State, Mr. Jeft'erson, demanded that France should
make restitution of the Grange, and set the prisoners taken
upon her at lil)erty, which demand was promptly and cheer
fully conii)lied with by the French Government.
''If it be said that the mere claims of a nation to jurisdiction
over adjacent waters are to be accepted with some degree of
hesitation, then the action in reference to the Grange is of
much weight, for there the claim made by the United States
was promptly acquiesced in by two great foreign powers, when
passions were excited, and when such acquiescence was greatly
against the immediate interest of one of the combatants, as
t well as against the general interest of both.
MISCELLANEOUS CASES. 4341
<^ It will hardly be said that Delaware Bay is any the less
an inland sea than Chesapeake Bay. Its configuration is not
such as to make it so, and the distance from Gape May to Cape
Heiilopen is apparently as great as that between Cape Heniy
and Cape Charles.
'^ Reflection upon the subject has caused the court to con-
sider this question of very considerable national importance.
Contingencies might arise which would make it of very grave
import. The ^high sea' belongs to all alke. It is the great
highway of nations. One can not lawfully do aujrthing upon
it which any other has not the right to do. One can not exer-
cise sovereignty over it. Can an American court concede so
much as to Chesapeake Bay! Other nations, by common con-
sent of all, have well- recognized i>eaceable rights even in our
territorial waters. Ought we to admit that they have any
rights hostile to the United States, or can we permit belliger-
ent operations between foreign nations within the shores of
this bay! What injustice can be done to any other nation
by the United States exercising sovereign control over these
waters! What annoyance and what injury may not come to
the United States through a failure to do sof
*^ Considering, therefore, the importance of the question, the
configuration of Chesapeake Bay, the fact that its headlands
are well marked, and but twelve miles apart, that it and its
tributaries are wholly within our own territory, that the bound-
ary lines of adjacent States encompass it ; that from the earliest
history of the country it has been claimed to be territorial
waters, and that the claim has never been questioned ; that it
can not become the pathway from one nation to another; and
remembering the doctrines of the recognized authorities upon
international law, as well as the holdings of the English courts
as to the Bristol Channel and Conception Bay, and bearing in
mind the matter of the brig Chrange and the position taken by
the government as to Delaware Bay, we are forced to the con-
clusion that Chesapeake Bay must be held to be wholly within
the territorial jurisdiction and authority of the Government of
the United States and no part of the ^high seas' within the
meaning of the term as used in section 5 of the act of June
5, 1872.'^
Stetson V. United States, No. 3993, claM 1, Second Court of Couiiuinsiouers
n( Alabama Claims.
4342 INTERNATIONAL ABBITRATIONTB.
Tbe American schooner WoHhingtanj while
H^^wZ^^^ engaged in fishing in the Bay of Fundy, ten
miles distant from the shore, was seized by
one of Her Britungic M(^jesty-s cruisers and taken to Yar-
mouth, in Nova Scotia, and condemned, on the g^round that she
was eugaged in fishing in British waters in violation of the
])rovisions of the convention relative to the fisheries, entered
into between the United States and Great Britain, on Oc
tober 20, 1818. A claim for damages was made before tbe
commission under the claims convention between the United
States and Great Britain of February 8, 1853, on the ground
that the seizure was in violation of the provisions of the con-
vention of 1818 and of the law of nations.
Hornby, British commissioner, maintained that the seizure
was justified, both on the ground that the Bay of Fundy was
an indentation of tlie sea, over which Great Britain might by
virtue of the law of nations claim exclusive jurisdiction, and
also on the ground that, by a fair construction of the conven-
tion of 1818, the Bay of Fundy was one of the *' bays " in which,
by that convention, the United States had renounced the right
to take fish.
Upham, the American commissioner, denied both these con-
tentions, citing Vattel, 1. ch. 20, ss. 282, 283; Grotius, II. ch.
2, sec. 3; 1 Kent's Comm. 462; Sabine's Report on the Fish-
eries, 282, 294.
The umpire rendered the following decision:
'»The schooner Washing(o7i was seized by the revenue
schooner Julia^ Captain Darby, while fishing in the Bay of
Fundy ten miles from the shore, on the 10th of May 1843, oo
the charge of violatinfr the treaty of 1818. She was carried
to Yarmouth, Nova Scotia, and there decreed to be forfeited
to the Crown by tlie judge of the vice admiralty court, and
with her stores ordered to be sold. The owners of the Wa^h
i)Hfton claim for the value of the vessel and appurtenances,
outfits, and damages, $2,483, and for eleven years' interest
*1,(>38, amounting together to 84,121. By the recent reci
])rocity treaty, happily concluded between the Unite*! States
and Great Britain, there seems no chance for any future dis
putes in regard to the fisheries. It is to be regretted that in
that treaty provision was not made for settling a few small
claims, of no importance in a pecuniary sense, which were then
existing, but as they have not been settled they are now
brought before this commission.
*'The ira,s7«'n//fon, fishing schooner, was seized, as before
stated, in the liay of Fundy, ten miles from the shore, off
Annapolis, Nova Scotia.
MISCELLANEOUS CASES. 4343
" It will be seen by the treaty of 1783, between Great Britain
and the United States, that the citizens of the hitter, in com-
mon with the subjects of the former, enjoyed the right to take
and cure fish on the shores of all parts of Her Majesty's do-
minions in America used by British fishermen; but not to diy
fish on the island of Newfoundland, which latter privilege was
confined to the shores of Nova Scotia* in the following words:
'And American fishermen shall have liberty to dry and cure
fish on any of the unsettled bays, harbours, and creeks of Nova
Scotia, but so soon as said shores shall become settled it shall
not be lawful to dry or cure fish at such settlements without a
previous agreement for that purpose with the inhabitants,
proprietors, or possessors of the ground.'
"The treaty of 1818 contains the following stipulations in
relation to the fishery : ' Whereas differences have arisen re-
specting the liberty claimed by the United States to take, dry,
and cure fish on certain coasts, bays, harbors, and creeks of
His Britannic Majesty's dominions in America, it is agreed that
the inhabitants of the United States shall have, in common
with the subjects of His Britannic Majesty, the liberty to fish
on certain portions of the southern, western, and northern coast
of Newfoundland, and also on the coasts, bays, harbors, and
creeks from Mount Joly, on the southern coast of Labrador, to
and through the Straits of Belle Isle, and thence northwardly
indefinitely along the coast, and that American fishermen shall
have liberty to dry and cure fish in «iny of the unsettled bays,
harbors, and creeks of said described coasts until the same
become settled and the United States renounce the liberty
heretofore enjoyed or claimed by the inhabitants thereof to
take, dry, or cure fish on or within three marine miles of any
of the coasts, bays, creeks, or harbors of His Britannic Maj-
esty's dominions in America not included in the above-men-
tioned limits: Provided^ however^ That the American fishermen
shall be admitted to enter such bays or harbors for the pur-
pose of shelter and of repairing damages therein, of purchasing
wood, and of obtaining water, and for no other purpose what-
ever. But they shall be under such restrictions as may be
necessary to prevent their taking, drying, or curing fish therein,
or in any other manner whatever abusing the privileges hereby
reserved to them.'
''The question turns, so far as relates to the treaty stipula-
tions, on the meaning given to the word * bays' in the treaty
of 1783. By that treaty the Americans had no right to dry
and cure fish on the shores and bays of Newfoundland, but
they had that right on the coasts, bays, harbors, and creeks of
Nova Scotia; and as they must land to cure fish on the shores,
bays, and creeks, they were evidently admitted to the shores
of the bays, etc. By the treaty of 1818 the same right is granted
' The privilege also extended to the Magdalon Islands and Labrador.
The quotation Mr. Bates gives from the treaty is in fact a summary of its
terms. See the chapter, supra, on the history of the Halifax Commission.
^%r
4344 INTERNATIONAL ARBITRATIONS.
to cnre fisb on the coasts, bays, etc., of Newfoaiidland, bat the
AniericaDS reliiKiuisbed that right and the right to fish within
three miles of tbecoasts, bays, etc., of Nova Scotia. Taking
it for granted that the framers of the treaty intended that the
word M)ay' or ^ bays' shoald have the same meaning in all
cases, and no mention being made of headlands, there appears
no doubt that the Washington^ in fishing ten miles from the
shore, violated no stipulations of the treaty.
^^ It was urged on behalf of the British Government that
by coasts, bays, etc., is understood an imaginary line, drawn
along the coast from headland to headland, and that the juris-
diction of Her Majesty extends three marine miles oatside of
this line; thus closing all the bays on the coast or shore, and
that great body of water called tho Bay of Fundy against
Americans and others, making the latter a British bay. This
doctrine of headlands is new, and has received a proper limit
in the convention between France and Great Britain of 2d
Angust 18.H9, in which 4t is agreed that the distance of three
miles fixed as the general limit for the exclusive right of fish-
ery uiK)n the coasts of the two countries shall, with respect to
bays the mouths of which do not exceed ten miles in width,
be measured from a straight line drawn from headland to
headland.'
^' The Bay of Fundy is from 65 to 75 miles wide and 130 to 1 40
mile^ long. It has several bays on its coasts. Thus the word
bay, as applied to this great body of water, has the same mean
ing as that applied to the Bay of Biscay, the Bay of Bengal,
over which no nation can have the right to assume the sover-
eignty. One of the headlands of the Bay of Fundy is in the
United States, and ships bound to Passamaquoddy must sail
through a large space of it. The island of Grand Menan
(British) and Little Menan (American) are situated nearly on
a line from headland to headland. These islands, as repre-
sented in all geographies, are situate in the Atlantic Ocean.
The conclusion is, therefore, in my mind irresistible that the
Bay of Fundy is not a British bay, nor a bay within the mean-
ing of the word as used in the treaties of 1783 and 1818.
"The owners of the Washington, or their legal representa-
tives, are therefore entitled to compensation, and are hereby
awarded not the amount of their claim, which is excessive, but
the sum of three thousand dollars, due on the 16th <lanuary
1855.''
Hat.4'8, umpire^ <'a8e of the Washingtonf convention between tlie United
States and Great Britain of February 8, 1853. (S. Ex. Doc. 103, 34 Cong-
1 sess., pp. 184.)
'*The umpire, appointed agreeably to the
Case of the "Argus." provisions of the convention entered into
between Great Britain and the United States
the 8th of February 1853 for the adjustment of claims by
MISCELLANEOUS CASES. 4345
a mixed commission, having been daly notified by the commis-
sioners under the said convention that they bad been unable
to agree upon the decision to be given with reference to the
claim of the owners of the schooner Arg\is^ of Portland, United
Suites, Doughty, master, against the British Government; and
having carefully examined and considered the papers and evi-
dence produced on the hearing of the said claim and having
conferred with the said commissioners thereon, hereby reports
that the schooner Argus, 55 tons burden, was captured on the
4th August 1844, while fishing on St. Ann's Bank, by the reve-
nue cruiser Sylph, of Lunenburg, Nova Scotia, commanded by
William Carr — Phillip Dod, seizing master — carried to Syd-
ney, where she was stripped and everything belonging to her
sold at auction. At the time of the capture the Argus was
stated on oath to have been 28 miles from the nearest land —
Cape Smoke. There was therefore in this case no violation
of the treaty of 1818. I therefore award to the owners of the
Argus, or their legal representatives, for the los8 of their
vessel, outfits, stores, and fish, the sum of two thousand dollars
on the 15th January 1855."
Batee, umpire, cose of the Argus, December 23, 1854, oommission nnder
the convention between the United States and Great Britain of Februaiy
8, 1853. (MSS. Dept. of State.)
" The umpire, appointed agreeably to the
Cue of the "PaUaf." provisions of the convention entered into be-
tween Great Britain and the United States on
the 8th of February 1853 for the adjustment of claims by a
mixed commission, having been duly notified by the commis-
sioners under the said convention that they had been unable
to agree upon the decision to be given with reference to the
claim of the owners of the fishing schooner Pallas, of llock-
port, United States, Harkall, master, against the British Gov-
ernment; and having carefully examined and considered the
papers and evidence produced on the hearing of the said claim
and having conferred with the said commissioners thereon,
hereby reports that it is stated the Pallas was chased by a
revenue cruiser from off Ghittican Bay on the 4th August
1840 for forty or fifty miles, captured, and sent to Sydney, de-
tained six weeks, and when released it was found that some of
the rigging had been taken away, the cable damaged, and
stores missing, part of the crew had left, and the voyage was
broken up. There being no evidence of these facts beyond
4346 INTERNATIONAL ARBITRATIONS.
the depositions of the president and directors of the insurance
company at Eockport (Maine), I reject the claim for want of
evidence."
BateH, anipire, January 15, 1855, convention between the United Stat4*«
and (;reat Britain of February 8, 1853. (MS8. Dept. of State.)
The American brig Ann sailed from Gibral-
^ri^SSl^^'of ^^ March 21, 1829, for New Orleans with a
tiM "Ann." cargo of Naples brandy. Having encountered
boisterous weather in the Gulf of Mexico, and
being in need of provisions, she put into the port of Vera Cruz
on the 17th of May to obtain supplies. Immediately on arriv-
ing the captain declared this object. Forty-eight hours after-
ward he prepared to depart, as authorized by article 6, chapter
1, of the Mexican tariff, but clearance was refused and pay-
ment of duties demanded, and when this demand was re-
sisted the vessel was libeled on allegations that the brandy
was Spanish and that the captain had been guilty of fraudu-
lent acts. On the trial before the district judge these allega-
tions were held to be untrue, and it was decreed that the vessel
should be allowed to proceed at once to New Orleans, as she
had touched at Vera Cruz only for repairs and supplies. The
custom-house took an appeal to the circuit court, which affirmed
the decree of the district court, directing the vessel to be re-
leased. Meanwhile, the cargo had been landed and taken to
the custom-house, and, notwithstanding the decree of the court,
the captain of the brig was unable to obtain its restoration, an*!
after many fruitless efforts he was obliged to pay the duties and
sell the cargo at Vera Cruz at a great sacrifice. The money
exacted as duties was placed in the public treasury, which was
then in great need of funds. Even after this an embargo was
laid on the vessel, and the master did not get away till the
15th of August. The amount of duties paid into the treasury
was $21,425.12 and the loss by demurrage 81,500. Had the
cargo been taken to New Orleans, it was estimated that it
would have sold for $23,227.50, after payment of duties. Tbo
actual net produce of the cargo at Vera Cruz was $4,820.2,").
An award was made by the umpire for $37,558.98.
Charles Callaghanv. Mexico: Comiuission UDder the convention between
the United States and Mexico of April 11, 1839.
The American schooner Augusta^ Robert
"*ffnita*»» ^' Perry, owner, sailed from New Orleans June 6,
1833, for Belize, British Honduras. After being
four days at sea the master became ill. On June 15 he made
MISCELLANEOUS OASES. 4347
land about 30 miles south of Kio Grande del Norte, and with
the supercargo and two of the men went on shore. Soon after-
ward a gale sprang up which prevented the party from return-
ing, and caused considerable damage to the vessel. Her cables
were parted and her anchors lost. The master immediately
proceeded to Brazos de Santiago, and there learned that the
schooner was off that port in distress. The gale had not en-
tirely abated, and she was in a perilous position ; and the mas-
ter, at extraordinary expense, procured a pilot to go with him
beyond the bar and bring the vessel into port. She was broujrht
in on June 18, and the master, immediately on her arrival,
exhibited to the custom-house her clearance, bills of lading, and
other papers. A permit was granted to unlade the cargo, for
the purpose of repairing the vessel and fitting her to resume
her voyage. She had sprung aleak, and part of the cargo was
materially damaged. But, wben the repairs were completed,
l)ermission to reload the cargo was refused ; and the vessel and
cargo were both detained by the authorities on a Muspieion that
she hsid come on the coast with an intention to introduce mer-
chandise into the country (contrary to law. The master refuted
this charge by all the proof that could be afforded. On the
other hand, no fact was proved to sustain the suspicion enter-
tained by the authorities, beyond the landing of the master on
the ex>ast, which was explained by his illness and the necessity
of securing medicine. Every effort was made to effect the
immediate release of the vessel and cargo, but particularly of
the vessel, since, if she remained, she would be ruined by the
worms. These efforts were ineffectual. The vessel was held
and the proceedings protracted, so that before their conclusion,
which resulted in an acquittal, the vessel was so much injured
that she was formally abandoned and became a total loss to
the owner.
The American commissioners allowed the claimant 84,500
for the vessel, with interest from January 20, 1833, and the
expenses of translaticm. The umpire on October 27, 1841, ren-
dered a decision sustaining the award of the American com-
missioners. He also made an award in favor of Charles Still-
man, assignee of S. S. Hurlbut, owner of the cargo, for ex-
penses and losses caused by its detention.
Robert Perry v. Mexico^ and Charles Stillmany attsignfe of S. S. Hurlhut^ v.
Mexico : CommisMion under the convention between the United SStates and
Mexico of April 11, 1839.
4348
INTBBNATIONAL ARBITEATIONS.
Cue of the "Bunui-
The American scbooner Susannah, James H.
Clay, master, cleared at New Orleans, iu No-
vember ld45 with a cargo for Oorpag Christi,
Texas. Having arrived at Aransaa Pass and taken a pilot,
slie was driven to sea by violent winds and finally compelled
to enter the month of the Bio Grande, which she made iu
December following, in great distress, having lost her aocborH
and cables, leaking badly, and being out of provisions and
water. Her master, after reporting her conditioD, Hoaght from
the Mexican authorities permission to remain and refit his
vessel. This permission was, however, refused, and the vessel
and cargo were seized and libeled for a breach of the revenue
laws of Mexico. The case was tried before the court at Mata-
moras, and the vessel and cargo condemned and confiscated,
and the master adjudged to pay-a heavy fine, on failure to pay
which he was imprisoned for about five months. He brought
a claim for his imprisonment before the commissioners ander
the act of Congress of March 3, 1849, who said:
"The only grounds assumed by the court for the judgment
and sentence were that the vesRct had sailed for Uoipas
Christi, the same being a iK>rt of Mexico and closed to foreign
commerce, and that part of her cargo consisted of goods
declared contraband by the laws of Mexico. TJpon these
grounds such .judgment and sentence were palpably erroneous,
since Corpus Christi was a jwrt of the Republic of Texas and
entirely beyond the jnrisdictiou of Mexico, the former having
continued to exercise and tuaintiun exclusive sovereignty there
for nearly ten years. Nor ought any goods which the vessel
might have carried been considered contraband, since, her
entry into a Mexican port was not for the purpose of commerce,
but from necessity, and to escape destruction.
"This right of entry, under such circumstances, was a per-
fect right under the treaty then existing between the United
States and Mexico. The duty of the Mexican authorities was
to render assistance te the mn^t^r, instead of augmenting his
misfortunes. The imprisonment of the master, James H. Clay,
was intt only unjust, but his wrongs were heightened by treat-
ment degrading and inhuman, and he was only released from
imprisonment by order of General Taylor, upon the entry of
the Army of the I'nited States into the territory of Mexico,
* * * The board decides the said claim to be a good and
valid one."
Memorial of Jamet If. Clay: npinina of M^sHrn. Evaoa, Smith, nnd
Piiine, commissioners, December 6, 1850, nnder the act of CoDgreM of
March 3, 1S49. The .iw.ird \a this case n-as for unlawful imprison taeot
aod ppn>ouul ill iiHa);e, and it 1i>i1f inleraxt in theressel. An award was
mailf on the niemnrial of ileorge S. I'liwiti for Oven if' Downt, ownan, for
the cargo.
MISCELLANEOUS CASKS. 4349
From 1835 to 1841, inclaaive, three American
CMe the •* ter- y^gj^^jg^ ^],g Enterprhe^ the Hermosa^ aud the
Creole^ having large numbersof slaves on bonrd,
were, as it was claimed, forced, by or as the result of stress
of weather or other overrnling necessity, to enter the British
jurisdiction in the West Indies, where in each instance the
slaves were released, under circumstances which appear below.
The brig Enterprise sailed from Alexandria, then in the
District of Columbia, on .January 22, 1835, for Charleston,
South Carolina, having on board 73 slaves. Encountering
severe weather she was driven, after being three weeks at sea,
to put into Port Hamilton, in Bermuda, to reht. While the
vessel was in port she was entered by persons in authority
under the government, and the slaves were liberated.
Hannen, the agent of Great Britain, resisted
Argament of the ^|,^ claim on the following grounds :
Britiih Agent.
"1. That laws haye no force in them-^elves
beyond the territory of the country by which they are madi*.
"2. That, while, by the comity of nations, the laws of one
country are, in some cases, allowed by another to have opera-
tion within its territory, when it is so permitted the foreign
law has its authority in the other country ft*om the sanction
given to it there, and not from its original institution.
"3. That every nation is the sole judge of the extent and
the occasions on which it will permit such operation, and is
not bound to give such i)ermission when the foreign law is con-
trary to its interests or its moral sentiments.
"4, That England does not admit within its territory the
application of any foreijrn law establishing slavery, having
abolished the status of slavery throughout her dominions.
"5. That the condition of apprenticeship, as permitted to
remain in the West India islands, formed no exception to the
abolition of slavery throughout the British dominions, as it
was a system entirely different from slavery, and would not
justify sustaining any other description of slavery.
"0. That the liberty of any individual in British territory
could not be restrained without some law to justify such re-
straint, and that neither the apprentice law nor any other law
could be appealed to to justify the detention of these negroes.
" 7. That slavery was not a relation which the British Gov-
ernment, by the comity of nations, was bound to respect."
Thomas, the agent of the United States, ad-
Aignment of the ^^^^^^ ^ ^^^ f^^^. ^^^^^ ^^ie slaves on board
Amexioui Agent.
the ComH, in 18.'^0, and the Envmnium^ in
18.34,* were liberated by the British colonial authorities under
> See the hiHtory of the comiiiiBHion under the coDvention lietween the
United States and Great Britain of February 8, 1853.
ft
4350 INTERNATIONAL ARBITRATIONS.
similar circumstances, and that the British Government had
made compensation in both those cases, on the ^roniid that
they occurred while slavery existed by British law; but that
it had refused compensation in the case of the Enterprise^ for
the alleged reason that at the time this vessel arrived at
Bermuda slavery had, by the emancipation act of 1833, l)eeii
abolished throughout the British Empire. But he maintained
that the principle which required compensation in the cases of
the Comet and the Encomium equally applied to the case of the
EnterpriHe. By the act of 5 Geo. IV. c. 113 (1824), it was made
a felony for any person to bring slaves or other persons into
the British possessions with a view to their being dealt with as
slaves. This act, he maintained, abolished slavery in regard
to all persons brought into Bermuda as effectually as did the
act of 3 and 4 Wm. IV. c. 73 (August 28, 1833), in regard to
persons already there. It was evident, therefore, that in the
cases of the Comet and the Encomium effect was allowed to
the United States law, by which the vessel was governed, for
the reason that when vessels are driven by necessity into a
foreign jurisdiction they are under the protection of the law of
nations and '* shielded from any control of the local authorities.-'
Mr. Thomas also argued that when the Enterprise arrived
at Bermuda slavery had not been abolished '* throughout the
British Empire." By section 44 of the act of 1833 territories
in the possession of the East fndia Company, the Island of
Ceylon, and the Island of St. Helena were excepted from its
operation, the ett'ect of which was to reestablish slavery in
those i)laces, if section 12 had abolished it, and to permit its
continuance there, as it actually did. He also argued that
from 1834 to 1840, when the act took complete effect, the con-
dition of slavery in the West India colonies was merely changed
to that of ai)prenticeship, in which the negroes virtually con-
tinued to be bondsmen.
Proceeding to the question of jurisdiction, Mr. Thomas main-
tained that "international law isolates the vessel driven by
necessity into a foreign port, and preserves in force the laws
of her own country." On this point he cited Madrazzo v.
^S'illes^ 3 Barn, and Aid. 353; Le Louis, 2 Dod. Adm. 210.
Upham, the American commissioner, ex-
Opinion of the Ameri- i • ^i r> xt ti ^ • ^t ^ i
. ^ i)ressed, in the case of the hnterprtse. the fol-
ican Commissioner. ^ ' ' -
lowing views:
"In March, 1840, resolutions were submitted to the United
States Senate relative to this claim, by Mr. Calhoun, which
MISCELLANEOUS OASES. 4351
were adopted by that body, and which briefly set forth the
principles on which the claim is based.
^^ These principles are: ^That a vessel on the high seas, in
time of peace, engaged in a lawful voyage, is, according to the
law of nations, under the exclusive jurisdiction of the state
to which she belongs; and that, if such vessel is forced, by
stress of weather or other unavoidable circumstance, into the
port of a friendly power, her country, in such case, loses none
of the rights appertaining to her on the high seas, either over
the vessel or the personal relations of those on board.'
"It was contended that the Enterprise came within these
principles, and that the seizure and liberation of the negroes
on board of her, by the authorities of Bermuda, was a viola-
tion of these principles and of the law of nations. ♦ ♦ ♦
"I shall endeavor to ascertain what this law is. Before
proceeding, however, to give my views fully on this subject,
I shall advert briefly to the various points taken in the argu-
ment addressed to us by the learned counsel for the British
Government.
" These points are:
"1. *That laws have no force, in themselves, beyond the
territory of the country by which they are made.'
" My reply is that this is usually the case; but it is subject
to the importiint addition that the laws of a country are uni-
formly in force, beyond the limits of its territory, over its ves-
sels on the high seas, and continue in force in various respects
within foreign ports, as we shall hereafter show.
"2. It is contended ^thatby the comity of nations the laws
of one country are, in some cases, allowed by another to have
operation within its territory; but, when it is so permitted, the
foreign law has its authority in the other country from the
sanction given to it there and not from its original institution.'
*'3. *That every nation is the sole judge of the extent and
the occasions on which it will permit such operation, and it is
not bound to give such permission where the foreign law is
contrary to its interests or its moral sentiments.'
"As to these points, I concede that there are many laws of
a foreign country, in reference to its own citizens or their obli
gations, that another nation may enforce or not, where the citi-
zens of such a country voluntarily come within its borders in
order to place themselves under its jurisdiction. Hut there are
cases where persons are forced by the disasters of the seaupon
a foreign coast, where, as I contend, a nation has fundamental
and essential rights within the ordinary local limits of another
country, of which it can not be deprived, and that are ()i)era-
tive and binding by a sanction that is wholly above and beyond
the mere assent of any such state or community.
"Such rights are defined by jurists as the absolute interna-
tional rights of states. I might also add, it is not now a ques-
tion whether the doctrines of international law shall prevail
either in England or America.
4352 INTERNATIONAL ARBITRATIONS
<<< International law,' says Blackstoue, ^has been adopted
in its full extent by the common law of England; and wlieo-
ever any (|uestion arises which is properly the sabject of its
jurisdiction, it is held to be a part of the law of the land.'
(Black. Com. vol. 4, p. 67.)
^^ International law is also recognized by the Coustitation of
the United States, and it is made the duty of Congress to pun-
ish offenses against it.
*^ 4. It is contended ' that England does not admit within its
territory the application of any foreign laws establishing
slavery, having abolished the status of slavery throughout its
dominions.'
^^Tbis position is open to the exception taken to the sec-
ond and third propositions, and is subject to the same reply.
*' 5. it is contended ^that the condition of apprenticeship, as
permitted to remain in the West India Islands by the act of
3 and 4 Wm. lY. eh .73, is no exception to the abolition of slav-
ery throughout the British dominions;' because, it is said, the
system is entirely different from slavery in point of fact, and
because, howevei: near a resemblance it may bear to it, it could
afford no justification for an English court to hold that another
sort of slavery was valid.
** Our reply to this is, that slavery does not necessarily de-
|)end on the length of t|me the bondage exists, but on its
character.
^•The apprenticeship system continued, as to a portion of
those to whom it was applicable, for twenty -one years; and
few persons can calculate on a lease of life for a longer time.
''Apprentices also were liable to be bought and sold or
attached for debt. The system therefore had all the worst
characteristics of slavery.
'* Further, the act abolishing slavery acknowledged the legal-
ity and validity of slavery as an institution, as it rendered
compensation for the liberation of slaves according to their
respective valuations, and also gave to the owners of slaves
the benefit of a term of intermediate service. If it was not
considered right to liberate British slaves except on these con-
ditions, how can it be right to compel the liberation of Ameri-
can slaves, casually thrown within the country, when no such
compensation has been made or term of service secured to
their owners!
" This forced liberation of the slaves of another government
without compensation is placed on the ground of the universal
* abolition of slavery throughout the British dominions.' Such
abolition, however, was not effected by this act, as the sixty-
fourth section provides * that nothing in the act contained doth
or shall extend to any of the territories in the possession of the
East India Company, or to the Island of Ceylon, or to the Island
of St. Helena.' It was merely enjoined on the East India
Company by Parliament at the same session ' that they should
L forthwith take into consideration the means of mitigating
I' slavery in their possessions, and of extinguishing it as soon as
MISCELLANEOUS OASES. 4353
•
it should be practicable and safe,' and slavery was not abolished
in those provinces for some years subseqaent to that period.
*< It is also said ' that the provincial government of Bermuda,
after the passage of the general act abolishing slavery, abol-
ished the apprenticeship system prior to the liberation of the
slaves on board the Enterpriser^ bnt such abolition was not
made till, under the general law, they had received compensa-
tion for their slaves
'*6. 'The principle on which the right of every man to personal
liberty within British territory is attached is that some law
must be appealed to to justify the restraint of liberty; and
that neither the apprentice law nor any other law can be ap-
pealeil to to justify the restraint of these negroes.'
"To this we reply that the law of the country from which
the vessel comes, as sustained and enforced by the law of
nations, can as well be appealed to on this subject as on any
other. It is expressly admitted in the argument that the law
of nations may be appealed to, as exempting property, other
than slaves, in cases of shipwreck and disaster, and exempting
vessels of war from ordinary municipal jurisdiction; and this
is done by giving to the law of nations, in such case, the force
and effect of municipal law, which is all that is asked to be
done in this case.
" 7. It is contended ' that slavery is not a relation which the
British Government, by the comity of nations, is bound to
respect.'
" But such is not the doctrine of the British courts. They
bold themselves bound, by the comity of nations, to respect
both slavery and the slave trade; and they uphold and sustain
it in their decisions, where the rights of other nations are con-
cerned
" In 3 Barn. & Aid. 353, Maddrazzo v. WilleSy Chief Justice
Abbott says ' it is impossible to say that the slave trade is
contrary to the law of nations;' and Lord Stowell says, in
Le Louis, 2 Dodson's Admiralty Reports, 210, ' that the slave
trade is not piracy or crime by the law of nations, and is
therefore not a criminal traffic by such law; and every nation,
independent of treaty relations, retains a legal right to carry
it on,' • • *
" 1 shall now proceed, as I proposed, to state my views as to
the principles of international law applicable to cases of this
description. They are ♦ • ♦ :
" I. That each country is entitled to the free and absolute
right to navigate the ocean as the common highway of nations,
and while in the enjoyment of this right retains over its ves-
sels the exclusive jurisdiction of its own laws.
"The Emperor Antoninus said 'though he was the lord of
the world, the law only was the ruler of the sea.'
" Grotius says ' that the sea, whether taken as a whole or as
to Its principal parts, can not become property. For the mag-
nitude of the sea is so great it is sufficient for all peoples' use.
4354 INTEKNATIONAL ARBITRATIONS.
There is a Datuml reason which preveuta the sea from beinj
made ])roi<erty, merely because occupatiou ciin only be applies
to a tliiug which is bounded. Now, fluids are unboutided ant
can not be occupied except as they are coutaioed iu sonjetbiof
else, as lakes and ponds are occupied, and rivers an far us tlieJi
banks; but the sea is not contained by the land, being equa
to the land, or greater, so that the aucieuts say the land if
boandt^d by the sen.' (Grotius, book '2, ch. 2, sec. 3.)
" Vattul says < that the right of navigating the open sea i>
aright common to all men; and the nation that attenapts tc
exclude another from that a<lvantiige does lier an injury, and
furnishes her with sutGcient grounds for commencing faoHtili'
ties.' And ' that nation which arrogates to itself an exclusive
right to the sea does an injury to all nations, and they are
Juijtified in forming a general combination against it, in order
to repress such an attempt.' (Vattel, book 1, ch. 23, sees.
282, 283.)
" Indeed, the free right of each nation to navigate the ocean
is now nowhere contested, and it carries with it, aa a neces-
sary result, the exclusive Jurisdiction on the high seas of the
laws of each country over its own vessels.
" Phillimore, in his recent work on International Law, Vol.
l. p. 3;12, says that 'all authorities conibine, with the reason
of the thing, in declaring that for all offenses on the high seas
the territory of the country to which the vessel belongs is to be
considered as the locality of the otfeuce, and that the oD'euder
must be tried by the tribunals of his conn try;' and 'it matters
not,' he says, ' whether the injured person, or the offender, l»e-
longs to a country other than that of the vessel.' The rule is
applicable to all ou board. It is further well declared that this
right to navigate the oceiiii is a national one, and can nut be
exon-ised by an individual except under the patronage and
protection of his government. Thus it is hulden 'that every
ship is bound to carry a tlag, and to have on board ship's
papers indicating to what nation it belongs, whence it sailed,
and whither it is bound, uudor tlie iienaltyof being treated as
a pirate.' (1. i'hill. Internat. Law, 210.)
'*A vessel, wherever she is borne on the high seas, is bound,
therefore, to have a national character, and is part and parcel
of a recognized Kovcrnmeut.
'■ It is contended —
" IL That a vessel imi)olled by stress of weather, or other
unavoidable necessity, has a right to seek shelter in any har-
bor, nx iuciih'tit lo her i-iijhtlo Hari</ff<ef/it^H<^<''Fn, until the danger
is past and siie can pro<;eed again in safety.
"This position I propose t« sustain on three grounds: By
authority ; by the com-ession of the British Government ia sim-
ilar <^ases; and by its evident neeessity as parcel of the free
right to navigate the ocean, and therefore a necessary incident
of such right.
" ] . Tlie elVect of stress of weather in exempting vessels from
liabilities to local law, when they are driven by it within the
MISCELLANEOUS CASES. 435.^)
ordinary jurisdictiou of auother country, is well settled by
authority in various classes of cases, viz, ia reference to the
blockade of harbors and coasts; of prohibited intercourse of
vessels between certain ports that are subject to quarantine
regulations; intercourse between certain countries, or sections
of countries, which is interdicted from motives of mercantile
|K)licy, and in cases of liability to general customs duties.
(Authorities on these points will be found in the Frederick
Moike^ 1 Kob. Bep. 87; the OolumOia^ id. 156; the Juffrow Ma-
ria Schroeder^ 3 Kob, 153; the Hoffnuny^ 6 id. 116; the Mary^
1 Gall. 206; PHnce v. U. S.j 2 Gall. l'04; Peinch v. Ware, 4.
Oranch, 347; Lord Kaymond, 388, 501; Reeves's Law of Ship-
ping, 203; the Francis and Eliza, 8 Wheaton, 398; Sea Laws,
arts. 29, 30, and 31, and the Gertrude, 3 Story's Rep. 68.)
^^ In the last* named case the learned Judge remarks ^ that it
can only be a people who have made but little progress in civ-
ilization that would not permit foreign vessels to seek safety
in their ports, when driven there by stress of weather, except
under the charge of paying impost duties on their cargoes, or
on penalty of confiscation where the cargo consisted of prohib-
ited goods.' (See also Kent's Commentaries, 145, and author-
ities there cited.)
^<The authority of writers on international law is also di-
rectly in point. Vattel holds to the free right of all nations to
the use of the ocean, with the exception that a portion of the
ocean, immediately contiguous to the land, is subject to each
government for the purposes essential to its protection. Even
here, however, he says: ^ Other nations have a right of passage
through such portions of the sea when not liable to suspicion,
and in cases of necessity the entire right of the government
ceases, as, for instance, where a vessel is obliged to enter a road
in order to shelter herself from a t(*mpest. In such case she
may enter wherever she can, provided she cause no damage, or
repair any damage done. This is a remnant of his primitive
freedom of which no man can be supposed to have divested
himself; and the vessel may lawfully enter, in spite of such
foreign government, if she is unjustly refused admission.' (Vat-
tel, book 1, ch. 23, sec. 288.)
"Again, he says in another section, ^a vessel driven by
stress of weather has a right to enter, even by force, into a
foreign porV (Vattel, book 2, ch. 9, sec. 123; Puffendorf, book
3, ch. 3, sec. 8.)
" Vattel thus considers thi^ an absolute right that may be
a8sertA.'d at any hazard, and not a right resting in comity or
dependent on a license that may be modified or revoked. In
the resort to force for the ])reservation of such rights he is
sustained by Phillimore and other modern writers on interna-
tional law who hold that the violation of rights strictijurin, or
the absolute rights of nations, ^ may be redressed by forcible
means.' (Phill. International Law, sec. 143.) Grotius, Puffen-
dorf, and other writers lay down as a general principle the
5627— VOL. 4 71
1
4356 INTERNATIONAL ARBITBATIONa
rale which is applioable to this case: < That, in extreme neces-
sity, the primitive right of usin^ things revives, as if they had
remained in comnioi), and that snch necessity in all laws is
excepted.' (Grotins, book 2, ch« 2, sec 6; Pafifendorf, book
2, ch. G, sees. 5 and 6j Vattel, book 2, ch. 9, sees. 119 and 120;
Bowyer's Ootnnientanes on Public Law, p. 357.)
<< 2. The principles of law laid down by these various writers
are also sustained by admissions of the British Government,
and by the allowance and adjostmeut of claims of precisely the
same character as the one before us.
^'In the correspondence between the two governments in
reference to this claim, it is admitted by Lord PalmerstoD,
< that where a ship, containing irrational animals or things, is
driven by stress of weather into a foreign port, it would be
highly unjust that the owner should l^ stripped of what
belongs to him, through the application of the municipal law
of the state to which he had not voluntarily submitted him-
self.'
^< This is an admission of the high iiyustice of seizing all
property, except in slaves; but the British Government have
in other cases conceded the application of the same principle
to slaves.
*' This was done in the case of the Oometj to which I have
before alluded, which was similar, in all essential parti(*ulars,
to this case. The Comet sailed from the District of Coluiiibiii
in 18:i0, for New Orleans, having a number of slaves on board;
she was stranded on one of the false keys Oi tue Bahamas, and
the crew and persons on board were taken by the wreckers
into the port of Nassau, where the slaves were seized by the
authorities of the island and liberated.
" The case of the Enoommm is of the same description. She
sailed from Charleston in 1834, with slaves on board; was
stranded in the same place, and the crew and persons on boaixi
were taken into the same port, where the slaves were seized
and liberated by the authorities.
" Claim was presented for redress for these injuries, and
after full discussion of the subject, compensation was made by
the British Government for the slaves thus liberated; and this
comi)en8ation was rendered solely on the principle now con-
tended for, that where a vessel is forced by stress of weather
into a foreign port, she carries with her her rights existing on
the high seas as to the vessel, property, and personal rehitions
of those on board, as sustained by the laws of her own country.
"That such was the ground on which these claims were
allowed and paid is manifest, be(!ause they were slaves of a
foreign country, brought within the limits of the British Gov-
ernment, but not held there in bondage by any British law.
" So far was this from being the case, that the statute of 5
Geo. IV. ch. 113, then in force, expressly prohibited bringing
slaves from other countries into i>hices within British jurisdic-
tion^ or retiiiniug them there, under heavy penalties; and all
MISCELLANEOUS OASES. 4357
persons offending aprainst this law were declared to be felons,
and were liable to be transported beyond sea, or to be confined
and kept at hard labor for a term of not less than three, nor
more than five years.
^' There was, then, no British law in existence by which these
slaves could be holden; and the claim to compensation rested
solely on the laws of the United States, which were holden to
be righttully operative, and in force against the persons claimed
as slaves, nnder the circumstances in which the vessel was
driven into port.
^^This result it is impossible to avoid, and the principle
asserted is fully sustained by these (;ases. I am aware that
the claim of the Enterprise^ which was pending at the same
time, was disallowed, on the ground of a subsequent change
in the local law in reference to slaverv. The slaves of the
Comet and the Encomium^ however, were not holden by any of
the local laws of the island, but were there in violation of
them. The repeal of such local law, therefore, can in no manner
affect the principle of the decision.
"3. A further reason assigned for the point now under con-
sideration is its evident necessity as a part of the free right of
each nation to navigate the ocean, and as a necessary incident
of such right.
** Writers on public law, we have seen, assert a right to enter
a foreign port, when driven there by stress of weather, on the
ground of necessity. This necessity arises from perils on the
deep, to which all navigation on the ocean is subject; and if
such perils from this cause give the right of refuge, it becomes
necessarily what I claim for it — an incidental right to the navi-
gation of the ocean.
<^It is a necessity essential to the enjoyment of a clear and
undeniable right; and whatever is essential to the enjoyment
of a right, or is a necessary means of its use, is, ex vi termini^
a necessary incident of such right.
"This connection 1 have not seen adverted to; and it is not
laid down by the writers cited, as it was not essential to their
purpose to follow out the origin or (causes from which the neces-
sity arose. It is clearly embraced, however, in their proposi-
tions, and is important in this case, as it determines the true
character of the rights arising from this necessity in a manner
thata<lmits of no (question or controversy.
"The claim is thus an incident to an absolute and essential
right of nations, and is not a claim to the mere favor of any
people, which they may give or deny at pleasure, out of any
supposed exclusive jurisdiction of their own.
"All incidental rights are based on necessities arising from
the prior and original right. A right to the end uniformly
carries with it a right to the means requisite to attain that
end, or, as is stated by Mr. Wheaton, 'draws after it the inci-
dental right of using all the means which are necessary to the
4358 INTERNATIONAI. ARBIl*RATTONa
seoare epjoyment of the thiug itself.' (Wheat, part 2y ch. 4,
secH. 13 and 18.)
^^ Further, incideutal rights, of a similar character and at-
tended with precisely the same resalt as to entry within the
territorial jurisdiction of another governuieut, have been as-
serted in connection with the right to navigate the oce^D,
and are holden as undoubted law. Thus the right to navigate
the ocean is holden to give the right, as incidental to it, to }ier
sons inhabiting the upper sections of navi^rable rivers to pavss
by such rivers through the territory of other governments in
order to reach the ocean, and thus jiarticipate in the commerce
of the world.
^Kireat Britain claimed and exercised this right with all its
incidents against Spain in the navigation of the Mississippi;
and when a Spanish governor undertook at one time to forbid
it, and cut loose vessels fastened to the shores, it is asserted
by Mr. Wheaton that a British vessel moored itself opposite
New Orleans, and set out guards, with orders to fire on persons
who disturbed her moorings. The governor acquiesced in the
right claimed, and it was afterwards exercised without inter-
ruption. (Wheaton, part 2, ch. 4, sec. 18; (rrotins, book 2, ch.
2, sees. 12 and 13; ch. .'3, sees. 7-12; Vattel, book 2, ch. 9, sees.
126-130; ch. 10, sees. 132-1.34; Puffendorf, book 3, ch. 3, sees.
3-6.)
"The right to the use of navigable rivers, further, is holden
to draw after it, as a means necessary to its enjoyment, the
right to moor vessels to the banks of such rivers within another
country, and the very right we here contend for — *to hind in
case of distress,' and, where a vessel is damaged, to deposit
her cargo on the shore until the vessel can be repaired and it
can proceed in safety. ( Wheatou's Internat. Law, Part 2, ch.
4, sees. 13-lS; Grotius, Book 2, ch. 2, sees. 11-15; Puffendorf,
Book 3, ch. 3, sees. 3-8; Vattel, Book 1, ch. 9, sec. 104; Book
2, ch. 9, sees. 123-139.)
*'lt is holden also in civil law that the use of the shores of
navigable rivers and of the ocean is incident to the use of the
water. (Inst, Book 2, title 1, sees. 1-5.)
'*For the convenient use of navigable rivers by nations
bordering upon them, treaties have been usually made, speci-
fying rules and regulations in ref»*rence to their use; but it is
well settled that such treaties recognize and sustain the right
of use, and do not originate it.
" It may be said that the right of shelter from the land, which
is claimed as an incident to the use of the ocean, can not be set
up at the same time with the right over the ocean, which is
admitted to a certain extent as incident to the land. But
these rights do not conflict with each other. The right of a
state bordering on the ocean to a given extent over the waters
immediately adjoining attaches for ceitain fiscal purposes and
purposes of protection. But the jurisdiction thus ol)taine<l is
MISCELLANEOUS CASES. 435!)
by no means exclasi ve. Sovereignty does not necessarily imply
iill power^ or that there can not coexist with it, within its own
<lomiuions, other inde})endent and coequal rights.
^^Indeedy the exception taken furnishes a strong argument
in favor of the principle we contend for, because the same rule
of justice that gives for certain purposes jurisdiction over the
waters, as incident to the use of the land, extends, for like
reasons, a right over the land for temporary use and shelter,
as incident to the use of the ocean. The rnle operates with
equal validity and justice both ways, and its application in
the one case sustains and justifies it in the other. If either
right must give way there seems to be no good reason why the
i)]der and better right of the nations to the free navigation of
the ocean, with its incidents, should be surrendered to the ex-
clusive claims of any single nation on its borders. But this is
not necessary, as both rights in their full perfection may exist
together.
**I now come to the third proposition.
<< III. That as the right of shelter, by a vessel, from storm
and inevitable accident, is incident to her right to navigate
the ocean, it necessarily carries with it her rights on the ocean,
so far as lo retain over the vessel, cargo, and persons on board
the jurisdiction of the laws of her country.
<<This is clearly the necessary result of the prior position.
It is laid down, as an elementary pro])osition, by Yattel. 'that
where an obligation gives a right to things without wnich it
can not be fulHIled, each absolute, necessary, and indispensable
obligation produces, in this manner, rights equally absolute,
necessary, and indefeasible.' (Yattel, Book 2, ch. 9, sec. 116.)
** W herever the use of a minor sheet of water may be claimeil
as incident to that of a larger, it is, while in use, a substitute
for it, and draws after it, as of ox)urse, all the rights and
])rivileges connected with the enjoyment of the principal right
itself.
"The entrance of a vessel into a foreign harbor, when com-
pelled by stress of weather, is a matter of right. She goes
there on a highway which, for the time being, is her own. She
is, as when on the ocean, part and parcel of the government of
her own country, temporarily forced, by causes beyond her
control, within a foreign jurisdiction. Her presence there
under such circumstances need not excite any more feeling
than when on. the ocean. It is a part of her voyage, tempo-
rarily interrupted by the vicissitudes of the sea, but carrying
with it the ))rotecti()n of the sea, and the property and rela-
tions of the persons on board can not, in such case, be inter-
fered with by the local law, so as to obstruct her voyage or
change such relations, so long as they do not conflict witb the
law of nations.
''These )>ositions do not seem to be contested, as a general
rule; but it is said that, sihce the abrogation of da very in
4360 INTERNATIONAL ARBITRATIONS.
Englaud, the principles thus laid down will not apjily to slave
pro|)erty. And this brings me to the fourth point to be con-
sidered.
'' IV. That the act of 3 and 4 Wui. IV, eh. 73, abolishing slav
ery in Great Britain and her dependencies, could not have the
effect to overrule the rights laid down in the foregroing propo
sitions.
"It has been contended that the law abolishing slavery over-
ruled the law of nations, on the ground that slavery is contrar}^
to natural right, and is, in fact, beyond the protection of all
law. Authorities have been cited as tending to sustain this
doctrine, going back to tlie earliest adjudged case in France,
where the question wau elaborately examined, and it was held
that the institution of slavery, in the absence of specific law,
could not be sust^iined under any subsisting usage or castom
of that country, as it was contrary to the laws of nature and
humanity, and slaves e^uld not brecithe in France.
'' Long after this, the Somerset case, sustaining the same prin-
ciple, came up in England, and from that time this has been
considered the leading case on tlie subject; and the declara-
tion founded u])on it, *that slaves can not breathe in England,'
has been usually re^jfi^rded as a sentiment peculiarly apphca-
ble to British soil and institutions.
"The doctrine of the Somerset case, and the expressions of
numerous distinpiished English and American jurists sustain
ing it, including Chief Justice Marshall, Mr. Justice Story, and
Chief Justice Shaw, have been fully cited in this case, Hhat
slaverjMS against tlie law of nature;^ *has no foundation iu
natural or moral right;' Ms odious,' etc. ♦ * •
''1 see no occ^asion to dissent from the full effect of the ad-
judications cited or the sentiments exprcvssed; but they do not
settle any (juestion of international right arising iu this case,
or defineany lineof limitation betwixt conflicting jurisdictions,
or sustain at all the point to which they are cited — that slavery
can not subsist by valid law.
''What is law is a (|uestion of fact; and though its original
institution may have been of doubtful morality or justice, it is
still law. It is a dangerous doctrine that all law, not origiuiUiy
conceived and promulgated in abstract right j is invalid, or is
to be instantly overthrown.
'' This is readily shown by extending the inquiry to other sub-
jects. By what abstract or natural right, I might ask, is one
man born to rule over another or one set or class of men by
birth to become legislators for others! There is no such nat
ural ineciuality. There is no princii>le of abstract right to sus
tain 8U(;h an order of things. Bnt we must deal with instita
tions as they are and relations as they subsist. Reforms must
advance gradually. The time will doubtless come when all
things not founded in right will cease; when there will be no
privileged classes by birth ; no compulsory sup])ort of one relig-
ious sect by another to which it is conscientiously opposed; no
sales of religious presentations; no slavery.
Miscellaneous cases. 4361
<<Bat these Gordian knots that have been compacted for
centuries and are intertwined and boand apin all the relations
of men are not to be severed at a blow. Each nation must deal
with them in its own time and manner. Saeh measures of
reform can not be promoted by the illegal interference of one
nation with another or by forcing upon shipwrecked individ-
uals temporarily thrown within the limits of another land laws
in contiict with their own right of self-government and the
established relations of their country.
" These views are sustained by the concurrence of some of
the ablest English jurists and the settled adjudications of Eng-
lish law. Thus it has been holden, though the slave trade is
declared to be contrary to the principles of justice and human-
ity, that no state has a right to control the action of any other
government on the subject, (The Amedie, 1 Dod. 84 n; the
Fortuna, 1 Dod. 81 ; the JHana, 1 Dod. 101), and that no nation
can add to the law of nations by its own arbitrary ordinances
{Pollard ff. Bell, 8 Term Rep. 434; 2 Park on Insurance, 731),
or privilege itself to commit a crime against the law of nations
by municipal regulations of its own (Le Louis, 2 Dod. 351).
^«It is also holden that a foreigner, in a British court of jus-
tice, may recover damages in respect of a wrongful seizure of
slaves. (Maddrazzo v. Willes^ 3 Barn. & Aid. 3^; the Diana,
1 Dod. 95.) And in the case of Le Louis, 2 Dod. 238, above
cited, Sir Willam Scott (Lord Stowell) says, though the slave
trade is unjust and condemned by the laws of England, it is
not, therefore, a criminal traffic by the laws of nations; and
every nation, independent of its relinquishment by treaty, has
a legal right to carry it on. 'Xo one nation,' he says, *has a
right to force the way to the liberation of Africa by trampling
on the independence of other states, or to procure an eminent
good by means that are unlawful, or to press forward to a
great principle by breaking through other great principles
that stand m the way.'
^' And wjien pressed in the same case with the inquiry, * What
would be done if a French ship laden with slaves should be
brought into England?' he says, 'I answer without hesitation,
restore the possession which has been unlawfully divested;
rescind the illegal act done by your own subjects, ana leave
the foreigner to the justice of his own country.'
^*The doctrine that slavery can not be sustained by valid law
must be set at rest by these authorities.
" There is but one other ground on which it can be contended
that the act of 3 and 4 Will. IV. ch. 73, overrules the princi-
ples I have laid down, and that is that the municipal law of
England is paramount to the absolute rights of other govern-
ments when they come in contiict with each other. Such a
position virtually abolishes the entire code of international
law. If one state can at pleasure revoke such a law any other
state may do the same thing, and the whole system of inter-
national intercourse becomes a mere matter of arbitrary will
and of universal violence.
4362 1I4TEBNAT10NAL ABBITEATIONS.
"It appears to me, IVom a fiill examination of the law f^>-
p)icable to the case, t)iat the Enterprise waa eotitled, nnder the
immediate perils of her coiiditioD, to refuge in the Bermndas ;
that she hiid aright to remain there a snBicieDt timetoactx>in-
plish the purpose of her entry and to depart as Bhe came;
that the local authorities couki not legally enter on board of
her for the pur]ioBeof interfering with the condition of ]>er»nii8
or tilings as established by the laws of her country, and that
such an esereiee of authority over the commerce and instita-
tious of a friendly stiite is not warranted by the laws of nations.
"For these reasons I amof opinion that the claim t)efore the
commission in sustained and that the owners of slaves on
board the Enterprise are entitled to compensation for the illegal
interference with them by the aathoritiee of Bermada."
Hornby, the British commtsnioner, delivered
OirinlimofawBiltUhthe following opinion:
ComiiilMloneT.
"The facts in this case are, sboftly, as fol-
lows: During the early part of the yeiir 1835, the American
brig Enterprise, having on board a large number of slaves,
while on her voyage from Alexandria, in the District of Oolnm-
hia, to Charleston, in Sonth Carolina, was driven ftt)ni her
course by prevailing contrary winds, and being, by the delay thun
occasioned, in trant of provisions, put into theport of Hamilton,
in the Bermudas. Uu her arrival she was boarded by the colo-
nial autliorities and taken possession of on the groQi)d of hav-
ing slaves on board. Possession, however, was given up on the
authorities being informed of the circumstances under which
the vessel had put in.
" Before, however, the ship could leave the harbor a writ of
habeas corpus was obtained ut the instance of an association
of free blacks in the island and served upon the captain, re-
quiring his api>Garance before the court and the production
of the slaves still reinaiaing on hoard. UiK>n the argument of
the case the court declared that there was no law ^utliorizing
the detention of the slaves, and they were accordingly set at
liberty.
" Under these circumstances the United States Government
claim compensation at the hands of the Jiritish Oovcrnmentin
respect of the loss sustained by the owners of the slaves by
their release, basiug their demand on the following proposi-
tions; 'That a vessel on t!ie high seas, in time of i>e;ice,
engaged on a lawful voyage, is, swconling to the law of nations,
under the exclusive jurisdiction of the state to which she be-
longs; and that if such vessel is forced, bg stress of tceatker or
unavdidahle circumstance, into tlie port of a ftiendly power, her
country in .such case loses none of the rights appertaining to
her on the high seas, either over the vessel or the persooal
relations of those on board."
'United states Senate rPBiilntiuus, March. ISUi
MISCELLANEOUS CASES. 4363
" Mr. Webster, iu his letter to Lord Ashbarton on the Ist
of August 1842 states the second of these propositions in
somewhat different language. He says : ' If a vessel be driven
by stress of weather into the port of another nation it would
hardly be alleged by anyone that by the mere force of such
arrival within the waters of the state tbe law of that state would
so attach to the vessel as to affect existing rights of property
between persons on board, whether arising from contract or
otherwise. The local law would not operate to make the goods
of one man to become the goods of another man; nor ought it
to affect their personal obligations or existing relations between
themselves.'
*^ It is undoubtedly true, as a general proposition, that a
vessel driven by a.stress of weather into a foreign port is not
subject to .the application of the local laws, so as to render the
vessel liable to penalties which would be incurred by having
voluntarily come within the local jurisdiction. The reason of
this'rule is obvious. It would be a manifest injustice to pun-
ish foreigners for a breach of certain local laws unintentionally
committed by them, and by reason of circumstances over
which they had no control.
^^ Thus, to pite one of the most ordinary instances in which
the rule is applied: A storm drives a vessel, having a perfectly
legal cargo according to the laws of the country from which it
sailed, or to which it is bound, into the port of a country where
such a cargo is illegal and contraband. To subject this cargo
to the same penalty as if it were clandestinely smuggled would
be unjust. Our law, therefore, says : * The laws of the country
which gives you a national character shall be considered as
protecting you, and if it is not an illegal cargo in your own
country it shall not be so considered in the country into which
you have been involuntarily brought.' And this is precisely
what was done in the case of the Enterprise. The cargo was
legal according to the laws of America, illegal according to
the laws of England, and if brought within British jurisdic-
tion it rendei'^ the vessel liable to confiscation. It was
brought within that jurisdiction, but under circumstances
which exempted it from the penalty, and accordingly so far
the rule of international law was admitted and allowed to pre-
vail. But' more is demanded, for the claim is for indemnity,
because the cargo had, by mere act and operation of natural
law and of English law, resumed a character denied it by
Ameri(!an law. While the vessel is to the extent alluded to
free from the operation of local laws, it by no means follows
that it is entitled to absolute exemption from the local juris-
diction ; as, for example, it can scarcely be contended that
persons on board the vessel would not be subject to the local
jurisdiction for crimes committed within it. If acts of vio-
lence were committed on board against subjects of the country
to which the port belonged, or if a subject should be wrong-
fully detained on board, the local tribunals would be entitled
4364 INTERNATIONAL ARBITitATIONS.
to interfere to preserve the peace or protect the iiy nred jMrson.
This positiou may be illastrated by the law applicable to the
case of vessels of war entering a foreign port. It is admitted
by most, if not all, of the writers on international law that
national vessels are exempt from the local law. (^See the case
of the SantisHima Trinidad^ 7 Wheatou,352; Wheaton's Inter-
national Law, VoL I. p. 115; Phillimore's Oomm. on Interna-
tional Law, pp. 368, 373.) They are, as it were, entitled to a
species of extraterritoriality; yet it has been held by the Ex-
ecutive of the United States, on the aathority of two Attorneys-
General, that a foreign vessel of war entering its harbor is not
entitled to absolute exemption from its jurisdiction.^ • • •
^^This explanation of the law of nations shows that when a
vessel is in a foreign port under such circumstances as entitle
it to exemption from the application of tlie local law, the ex-
emption can not be put on the same ground as the immunity
from interterence of a vessel on the high seas, for there in
time of peace it is absolute. There is no right on the part of
a foreign court even to inquire into the legalit3' of anything
occurring in the ve*ssel of another country while at sea; but
within the territories of a country the local tribunals are par-
amount, and have the right to summon all within the limits of
their jurisdiction, and to inquire into the legality of their arts
and determine upon them according to the lawwhi^h may Ih'
applicable to the particular case. It appears to me, therefore,
that it can not with correctness be said *that a vessel foned
by stress of weather into a friendly port is under the exclusive
jurisdiction of the state to which she belongs in the same way
as if she were at sea.' She has been brought within another
jurisdi(!tion against her will, it is true, but equally against the
will and without fault on the part of the foreign power; she
brinj^s with her (by the law of nations) immunity from the op-
eration of the local laws for some purposes, but not for all,
' Here Mr. Hornby (luotcs from tho opinions of Bradford, Attorney-
General, 1794, I. Op. 47, and Lee, Attorney-General, 1799, I. Op. 87. In
the former opinion it was held that a writ of habeas corpus might l>e
awarded to bring up an "American subject" unlawfully detained un
board a foreign man-of-war, the commander being amenable.to the usual
Jurisdiction of the State where he happened to be, and not entitled to
claim the extrat-erritoriality which is annexed to a foreigu minister and
his domioil. It must be admitted that the opinion is not in all respects
well argued. In the second case Attorney-General Lee advised that crim-
inal and civil process might be served on board a British man-of-war lying
witliin the waters of the United States, basing his opinion on the provi-
sion in Article XXIIL of the Jay Treaty of 1794, " that the ships of war of
each of the contracting parties sliall at all times be hospitably received
in the ports of the other, their officers and crews paying due respect to the
laws and government of the country." But in 1855 and 1856 Attorney-
General Cnshing asserted the exemption of foreign ships of war firom the
local jurisdiction. (7 Op. 122; 8 Op. 73.)
MISCELLANEOUS cAssa 4365
and the extent of that immunity is the proper subject of in-
vestigation and adjudication by the local tribanals. Let ns
consider, then, the principles which ought to guide the local
courts in this investigation.
"It is true that by what is termed the ' comity of nations'
the laws of one country are, in some cases, allowed by another
to have operation; but in those cases the foreign law has its
authority in the other country from tbe sanction, and to the
extent only of the sanction, given to it there, and not from its
original institution. On this subjt^ct Vattel observes: ^It
belongs exclusively to each nation to form its own judgment
of what its conscience prescribes to it — of what it can or can
not do, of what is proper or improper for it to do ; and of course
it rests solely with it to examine and determine whether it can
perform any office for another nation without neglecting the
duty which it owes to itself; and for any other state to inter-
fere, to compel her to act in a different manner, would be an
infringement of the liberty of nations.' (Story's Conflict of
Laws, chap. 2, sec. 37, citing Vattel, Prelim. Diss. pp. 61, 62, sec.
14, 16; Story's Conflict of Laws, chap. 2, sec. 25; and see also-
sec. 24.)
^^From these principles it results that no nation can be called
upon, or ought, to permit the operation of foreign laws within
its territory whdn those laws are contrary to its interests or its
moral sentiments*^ ♦ • ♦
''The question then resolves itself into this: In what cases
and to what extent does the law of nations require that the
local law shall admit the application of the rules of the foreign
law instead of its ownf It is conceded that the foreign law
must be admitted to regulate the rights of property (i)roperly
so called) C(»ncerning chattels on board the vessel, and for some
other purposes; but the question we have now to determine is
whether the law of nations requires that the local law, which
ignores and forbids slavery, shall admit within its jurisdiction
the foreign, which maintains slavery.
*' Now, the two fallacies which appear to me to i)ervade the
whole of the argument in support of the claim and deprive it
of its whole force are these: First, that slaves are property in
the ordinary sense of the word; and, secondly, that inter-
national law requires that the right of the master to the per-
son of his slave, derived from local law, shall be recognized
everywhere.
" It is true that by the municipal law of particular countries
slaves may be treated as, an<l may even be declared to be, prop-
erty, and this has, in past times, been the case in some portions
of the English dominions; but there is an essential difl'erence
•On this question Mr. Hornby cites the opinion of Mr. Justice Story in
Priggy. Commontcfalth of Pennxylraniaf 16 Pete fk, 593; 2 Kent's Comm.
4th ed. p. 457; Saul v. Hie Creditors, 5 Mart. (La.) N. S. 669.
^1
4366 INTERNATIONAL ARBITRATIONS.
between the rights of owuers iu their slaves and ordioary prop-
erty. Thisditt'erence is dearly laid down by nii eminent Ameri-
can judge in the case of the Commimirealth v. AveSy 18 Picker-
ing's l{ei>orts, 216. Chief Justice Sliaw there says, 'That it is
not speaking with strict accuracy to say that a property cao
be acxjuired in human beings by local law s. Each State may,
for its own convenience, declare that slaves shall be deemed
pro|>erty, and that the relations and laws of personal chattels
shall be deemed to ai)ply to them ; but it would be a perverhion
of terms to say that such local laws do in fact make them per-
sonal proi)erty generally; they can only determine that the
same rules of law shall apply to them as are applicable to prop-
erty, and this eftect will follow only as far as such laws prapho
vigore can operate.'
" Mr. Webster, however, does not hesitate to place the rela-
tion of shivery on the same footing with that of marriage and
parental authority; but the answer to this attempted compari-
son consists in this, that all nations and societies acknowledge
marriage and parental authority. They are, indeed, the very
foundation of society; they may vary in form, but the essence
remains the same; they (;an not so much be said to be in con-
formity with the law of nature as to be themselves natural
laws. This is not the case with slavery, which is contrary to
the law of nature, and, so far from being acknowledged by all
nations, is now repudiaed by alniQSt all. l\roperty in things,
however, being recognized in all countries, it follows that in
case of sliip wreck ' the local law would not operate to make the
goods of one man to become the goods of another.' But to
make this dictum an authority tor the principle contended for,
it must first be established that there is no distinction between
property iu man and property in beasts and things.
'*In the case oi Jones v. Vanzandt (1 McLean, 59G) it was
held that no action could be maintained at common law for
assisting ji slave to escape, or harboring him after his escape
into a free State, and that damages were only recoverable in
such a case by virtue of the Constitution of the United States.
In giving judgment in that case Mr. Justice McLean observed:
'Thetrartic in slaves does not come under the constitutional
power of Congress to regulate commerce among the several
States. In this i'>ieir the Constitution does not consider slaves
as merchandise. This was held iu the case of Grooves and
Slaughter. (18 Peters.) The Constitution nowhere speaks of
slaves as property. * * * The Constitution treats of slaves
as persons.' ' Tlie view of Mr. Madison, who thought it wrong
to admit in the Constitution tlie idea that there could be prop
erty in man, seems to have been carried out in this most im-
l>ortant instrument. Wliether slaves are referred to in it as
the basis of representation, as migrating, or being imported,
or as lugitives from labor, they are spoken of as persons.'
* What have we to do with slavery m the abstract? It is ad-
mitted by almost all who have examined into the subject to be
ibanded in wrong, in oppression, in power against right.^
MISCELLANEOUS CASES. 4367
<< There is yet anotlier case whirli aftbrds a farther striking
illastratioii of the fact that American law recognizes an essential
difference between property in shives and property in things,
so as to affect the rights of tbe owner independently of liia will.
The second section of the fourth article of the Constitution
protects every slave owner from loss of his slaves by means of
their Hying into a free State; it gives bim aright to follow the
slave and seize him wherever he may find him. Yet, in tbe case
of The Commonwealth v. HoUoicaii (!i Sergt. and Kawle, 304), it
was held that where a female slave Hed into Pennsylvania,
and there gave birth to a child, though she herself might be
reclaimed by the owner, her child could not but remain free by
virtue of the law of the State, which declared that ' no man or
woman of any nation shall at any time hereafter be deemed, ad-
judged, or holden within the territories of this commonwealth,
as slaves or servants for life, but as free men and women.' Now,
it is obvious that if the property in the female slave were re-
garded in the same light as property in an animal, tlie ordinary
rule of law, ^partus sequitur ventrenij^ referred to by the learned
agent of the British Government, would have been applicable.
In that case, as in the present, the slaveowner might have said
as he now says: 'It was not by my consent that that which by
the laws of my country 1 am entitled to claim as my property
has been brought within the openition of your laws. My slave
and her increase are mine; am I to be deprived of that increase
because it has been by misadventure cast away upon your soil ?'
But the American law, in the case before me, as the English
law, answers: *It may be that in your own State you would
have had the right you claim; but we do not acknowledge
that you have a right of property in this human being as yon
could have in a horse or dog; if you had, your consent alone
would be considered in the matter; but as it is, here is an in-
telligent being who is entitled to be dealt with by our law,
which we sit here to administer, and not yours, as a man, and
by that law it is declared that no man shall be a slave.' In
the case also of Prigg v. The Commonwealth of PenHsylrania (16
Peters, 008), it was again held that the offspring of a fugitive
slave could not be reclaimed by the owner. On the authority,
then, of these cases, it may be considered as settled that by the
law of the United States the presence or absence of consent or
voluntariness on the part of the owner has nothing whatever
to do with the question of whether his slave, when within the
territory of a State, no matter how brought, which does not
acknowledge slavery, shall be i'ree or not. The answer that
must be given by the local tribunals, when called upon, must
de[)endapon the positive lawof the place. Inthe United States,
the Constitution has provided an answer in the fourth article;
but when the circumstances are such that the letter of that en-
actment or some other is not applicable, the American law de-
clares, like the English law, that it does not recognize property
in man, but regards them all alike, whether black or white, as
entitled to be Iree.
4368 INTERNATIONAL ABBITRATIONa
''Mr. Justice Story thus distinctly explains the ^eueral prin
ciple of public law on this subject, aud the mcniificatious wbicb
have been introduced by tlie IJnited States Constitation : *By
the p:enera] law of nations no nation i>t bound to recognize tJ^
Htatr of slavery as to fore'ujn slaves found tcithin its territorial
dominions^ when it is in opi>osition to its own ])o]icy and insti-
tutions, in favor of the subject of other nations where slavery
is recognized. If it does, it is a matter of comity and not a
nnitter of international right. The state of slavery is deemed
to be a municipal rei^^nlation, founded u))on and limited to the
range of territorial laws. This was fully recognized iu Sonier-
sett's case. It is manifest, then, from this consideration of the
law that if the Constitution had not contained this clause,
every nonslaveholding State in the Union would hare been at
liberty to have dwlared free all slaves coming within it^ limiU
and to have given them entire immunity and protection against
the claitns of their masters.^ And again he says: 'The duty to
deliver up fugitive slaves, in whatever State of the Union they
may be found, and of <'ourse the corresponding power in Con-
gress to use the appropriate means to enforce the duty, derire
their /<o/c validity and obligation exclusively from the Constitu-
tion of the United States, and are there for the tirst time rec-
ognized an<l established in that peculiar character.' (See also,
id. ch. i V. ser. 96, pp. l()5-(>, of Ml edit.)
"That foreign nations, then, are not bound by any rule of
intt^rnational law to recognize slaves as property, and award to
their owners the immunity which by the comity of nations is
usually granted in respect of ordinary chattels, is clear from
the ccmrse of legislation i)arsned by the United States; for, if
they could be so bound, no law or action of the United States
would have been necessary to compel one State denying the
right and existence of property in a slave to deliver up a fugi-
tive to another State admitting and maintaining the right, and
for this reason that the law of nations, being as binding between
State and State as between the I nited States and foreign coun-
tries, would have been sutlicient for the purpose, and no special
law would have been necessary. By what right, then, or by
force of what argument, can the United States insist that Great
Britain is to be bound by the law of nations to do that which,
by its own legislation, it has proved beyond all question the
sei)arate States were not and could not be bound to do!
*' It is evident, therefore, from a view of the American
authorities alone, that the institution of slavery dei)ends solely
ui)()n the laws of each individual State in which it is allowed,
and that from its very nature it is oidy coextensive with the
territorial hmits ot such laws. An American writer thus de-
scribes it: 'It is an institution,' says he, 'in which the slave
has no voice. It operates in in r it urn. The slave is no party,
either practically or theoretically, to the law under which he
lives in servitude. It is, moreover, an exceptional law: one
which depends solely for its observance on the continuance of
inSCELLANEOUS CASE8. 4369
the power who made it. The moment that power ceases^ the
objects of it are free to exercise their natural right^j which revive
to themy becatise they were held only in subjection or abeyance by
superior force, bat which could not be disturbed, alieDated, or
forfeited, except for some crime, springing as they do from the
immutable and eternal principles of nature and justice.'
^^ It appears to me then to be clearly established by all the
authorities on the subject, tliat nations or states are not bound
to recognize the relation of master and slave which may be
enacted by foreign law.
" In the case of Forbes v. Cochrane (2 B. and 0. 448) Mr.
Justice Holroyd says : ^A man can not found his claim to slaves
upon any general right, because by the English law such right
can not l^ considered as warranted by the general law of
nations; and if be can claim at all, it must be by virtue of
some right which he had acquired by the law of the country
where he was domiciled; that when such rights are recognized
by law, they must be considered as founded not upon the law
of nature, but upon the particular law of that country, and
must be coextensive, and only and strictly coextensive, with
the territories of that state; but when the party gets out of
the territory where it prevails, no matter under what circum-
stances, and under theprotectionof another power y without any
icrongful a^t done by the party giving the protection, the right
of the master^ which is founded on the nmnicipal law of the
place only, does not continue.^
^^The fallacy contained in the argument in opposition to this
view of the law consists in ignoring the slave as a man, and
in supposing him to be possessed of no rights, as against the
individual endeavoring to keep him in slavery, which a foreign
nation is justified in taking into consideration.
^^ As a man, the slave is as much entitled to appeal to the
protection of our laws as his owner, and liis claim must be
a(\jndicated upon in conformity with the same principles. In
the country whence he came, his voice could not be heard in
the local courts, to assert the rights which he derived from
nature, as against the municipal laws of the ))lace where he
was domiciled. When he is driven, together with his so-called
owner, to the shores of this country or its colonies, those rights
of his master whicL are founded on natural law, such as prop
erty, marriage, etc., etc., are respected. Why then are we to
be deaf to the appeal of the slave, when he also asks to have
his rights, which are equally fouhded on natural law, respected >
We have to choose between the natural law, supi)orted by our
own law, and foreign municipal law in direct opposition to both.
"The choice is none of our seeking, it is cast upon us by
chance. It would be to make international law a partial tyrant
rather than an equal arbitrator between nations — to hold that
one country can be bound under any circumstances, without
&ult of its own, to reject the law of nature and its own law, in
£ftvor of a foreign local law in opposition to both. • • •
4370 INTERNATIONAL ARB1TKATI0N8.
^^Lord PalmerstOD, in effect, states the principle . thus
announced when, with the concurrence of those eminent men
who now fill the highest judicial seats in the country, viz, the
present lord chancellor, the lord chief justice of England, and
the judge of the admiralty court, he declares that a distinction
exists between laws bearing upon the personal liberty of man
and laws bearing upon the lu'operty which man may claim in
irrationfJ animals or in inanimate things.
^^ 'If a ship,' says his lordship in a dispatch upon this sub-
ject, 'containing such animals or things, were driven by stress
of weather into a foreign |>ort, the owner of the cargo would
not be justly deprived of his i)roperty by the operation of any
particular law which might be in existence in that port, because
in such a case there would be but two parties interested in the
transaction — the foreign owner and the local authority; and
it would be highly unjust that the former should be stripped
of what belongs to him through the forcible application of the
municipal law of a state to which he had not voluntarily sub-
mitted himself.
'' 'But in a case in which a ship so driven into a foreign port
by stress of weather contains men over whose personal liberty
another man claims to have an acquired right, there are three
parties to the transaction — the owner of the cargo, the local
authority, and the alleged slave; and the third party is no less
entitled than the first to appeal to the local authority for such
protection as the law of the land may afibrd him. But if men
who have been held in slavery are brought into a country where
the condition of slavery is unknown and forbidden, they are
necessarily, and by the very nature of things, placed at once
in the situation of aliens who have at all times from their birth
been free.
" ' Such persons can in no shape be restrained of their liberty
by their former master any more than by any other person.
" ' If they were given up to such former master they would
be aggrieved, and would be entitled to sue for damages. But
it would be absurd to say that when a state has prohibited
slavery within its territory, this condition of thing must arise,
namely, that as often as a slave ship shall take refuge in one of
the ports of that state, liability must necessarily be incurred,
either to the former owner of the slaves, if the slaves be liber-
ated, or to the slaves themselves, if they are delivered up to
the former owner.
"'If, indeed, a municipal law be made which violates the
law of nations, a question of another kind may arise. But the
municipal law which forbids slavery is no violation of the law
of nations. It is, on the contrary, in strict harmony with the
law of nature; and therefore, when slaves are liberated ac
cording to such municipal law, there is no wrong done and
there can be no compensation granted.'
"I have hitherto considered this case ui>on general princi-
ples, because, aa otSiWC <iaa«& mv^i^ occur^ it is important to lay
MIBCELLANEOUS GA8EB. 4371
down fj^eneral rales; but the special circumstances of the case
would disentitle the claimants to compensation.
''One ground, if indeed it be not the chief ground, upon
which this claim has been rested is that the Enterprize was
compelled by necessity to put into the port of Bermuda, and
that on this account the owners of the slaves were entitled to
claim exemption from the operation of English law. I do not
think, however, that any such case of necessity has been made
out as would give rise to the exemption contended for, if under
any circumstances it could arise. It is not pretended that the
Enterprise was forced by storm into Bermuda. All that is
asserted is that her provisions ran short by reason of her
having been driven out of her course. No case of pressing,
overwhelming need is shown to have existed ; but, to avoid the
inconvenience of short rations (and, considering the nature of
the cargo, it was an inconvenience which a very slight delay
was likely to occasion), the master put into an English harbor
to procure supplies. These facts do not certainly disclose that
paramount case of necessity \vhi(;h has been insisted on
throughout the argument, and which alone (if any circum-
stances could give rise to the exemption upon which this claim
is supported) could form the basis of such an appeal as the
present. If a mere scarcity of provisions, which might arise
from so many causes, is to be considered not only as a suffi-
cient excuse for the entrance of a vessel into a British port
witli a [)rohibited cargo but is also to entitle it to an exemption
from the operation of the English law, it is impossible to say
to what the admission of such a principle might lead, or what
frauds on the part of slave speculators it might induce.
" With respect to the cases of the Comet and Encomium it
has been insisted that they are not distinguishable in jmnciple
from that of the Enterprize^ and that, as the English Govern-
ment granted compensation in tliCvse cases, we are bound by
the precedent thus made. Those vessels, however, were driven
into English ports, and the slaves on board were set free before
the passing of the act abolishing slavery. There was, there-
fore, no importation within the meaning of the act (5 Geo. IV.
ch. ll.S) which declared it illegal to import slaves and made it
a felony to do so, and conseciuently there was no breach of the
English law. Being then in an Knglish port, the only question
was whether there was any law wliich prevented their owners
retaining jmssession of them. At that time there was not.
Slavery was then in full force in the Bahamas, and of the
same kind as that to which the American slaves were subject.
The possession of the slaves was not therefore unlawful, nor
was the relation between them and their masters liable to be
dissolved by the mere accidental arrival of both in the colony.
But at the time when the^ Enterprize was brought into the
port of Hamilton, Great Britain had utterly and forever abol-
ished the status of slavery throughout the British colonies and
X)lantations abroad (see act of 3 and 4 VVm. IV. ch. 73^ sec. 9),
5627— VOL. 4 72
4372 INTESNATIOKAL ARBITBATION&
and by the act of the colonial legislature the apprentioeship
Bystem, created by the act of William IV. was dispensed with.
Slavery, therefore, in no fonu whatever, was known in the
Bermudas at the time the Enterprize entered the port. It was
impossible, therefore, that any judge called upon to administer
the law within these islands could, for any purpose or niider
any circumstances, recognize the relation of master and slave
as subsisting within the reach of his authority.
<' Under these (rircumstances I am clearly of opinion that
the claim of the owners of the slaves on board the Enterprize
at the time she put into Port Hamilton can not be sustained,
and that it ought, upon every principle of law, to be rejected."
The umpire delivered the following decision:
neeiiloii of the
Umpire. " "^^^^ claim is presented on behalf of the
Charleston Marine Insurance (Jompany of
South Carolina, and of the Augusta Insurance Ck>mpany iu
Georgia, for the recovery of the value of seventy-two slaves,
forcibly taken from the brig Enteiprize^ Elliot Smith, master,
on the 20th of February, 1835, in the harbor of Bamilton, Ber-
muda. The following are the facts and circumstances of the
case: The American brig Enterprize^ Smith, master, sailed
from Alexandria, in the District of Columbia, in the United
States, on the 22(1 of January, 1835, bound for Charleston,
South Carolina. After encountering head winds and gales,
and finding their provisions and water running short, it was
deemed best by the master to put into Hamilton, iu the island
of Bermuda, for sup])lies. She arrived there on the 11th of
February. Having t^iken in the supplies required, and having
eom|>leted the repair of the sails, slje was ready for sea on the
VMh with the pilot on board. During the repairs no one from
the shore was allowed to commnni<'ate with the slaves. The
vessel was kept at anchor in the harbor, and was not brought
to the wharf. Being thus ready for sea, Captain Smith pro
ceeded, with his agent, to the custom-house to clear his vessel
outward. The collector stated that he had received a verhal
or(l(»r from the council to detain the brig's papers until the
governor's pleasure could be known.
'*The comi)troller and a Mr. Tucker then went to the other
public oflices, and on their return to the custom house the
comptroller, after consulting for a few minutes with the col
lector, declared that he would not give up the papers that
evening, but wouW report the vessel out the next morning as
early jis the captain might choose to call for the papers.
" in ccmsequence of this decision, the captain Immediately
noted his protest in the secretary's oMice against the collector
and comptroller for the detention of his ship's papers, and in-
formed the officer of the customs he should hold them responsi-
ble; that he (the captain) feared the colored people of Hamilton
would come on board his vessel at night and rescue the slaves,
as they had threatened to do.
MISCELLANEOUS CASES. 4373
"The collector then replied there was no danger to be appre-
hended, that the colored people wonld not do anything without
the advice of the whites, and they knew the laws too well to
disturb Captain Smith. At 20 minutes to 6 o'clock p. m., the
chief justice sent a writ of habeas corpus on board, and after-
wards a file of black soldiers armed, ordering the captain to
bring all the slaves before him, the chief justice, which Gap-
tain Smith was obliged to do. On the slaves being informed
by the chief justice that they were free persons, seventy-two
of them declared they would remain on shore, which they did,
and only six of them returned on board to proceed on the
voyage.
"This is believed to be a faithful sketcli of the case, from
which it appears that the American brig Enterprize was bound
on a voyage from one port in the United States to another
port of the same country, which was lawful according to the
laws of her country and the law of nations. She entered the
port of Hamilton in distress for provisions and water. No
offence was permitted against the muni(;ipal laws of Great
Britain or her colonies, and there was no attempt to land or to
establish slavery in Bermuda in violation of the laws.
"It was well known that slavery had been conditionally
abolished in nearly all the British dominions about six months
before, and that the owners of slaves had received compensa-
tion, and that six years' apprenticeship was to precede the
complete enianci))ation, during which time apprentices were to
be bought and sold as property, and were to be liable to attach-
ment for debt.
" No one can deny that slavery is contrary to the principles
of justice and humanity, and can only be established in any
country by law. At the time of the transaction on which this
claim is founded, slavery existed by law in several countries,
and was not wholly abolished in the British dominions. It could
not, then, be ccmtrary to the law of nations, and the Enterprize
was as much entitled to protection as though her cargo con-
sisted of any other description of property. The conduct of
the authorities at Bermuda was a violation of the laws of
nations, and of those laws of hospitality which should prompt
every nation to afford protection and succor to the vessels of a
friendly neighbor that may enter their ports in distress.
" The owners of the slaves on board the Enterprize are there-
foreeutitled to compensation, and I award to the Augusta Insur-
ance and Banking Company or their le^al representatives the
sum of sixteen thousand dollars, and to the Charleston Marine
Insurance Company, or their legal representatives, the sum of
thirty-three thousand dollars, on the fifteenth of January 1855."
Hates, umpire, casij of the Enterprize, conventioii between the United
Stut«8 and Greut Britain of February 8, 1853. (S. Ex. Doc. 103, 34 Cong. 1
seHs. 187-237.)
4374 INTERNATIONAL ARBITRATIONS.
Two other cases, the Rermoaa and the Creole^
Case of the^ " er- jjjyQjyiug substantially the same principles as
the case of the Unterprize, were sabmitted by
the commissioners to the ampire on the opinions delivered by
them in the latter case.
The ampire rendered the following decisions:
" The umpire appointed agreeably to the provisions of the
convention entered into between Great Britain and the United
States on the 8th of February 18«i3, for the adjustment of
claims by a mixed commission, having been duly notified by
the commissioners under the said convention that they had
been anable to agree upon the decision to be giVen with refer-
ence to the claim of H. N. Templeman against theOovernment
of Great Britain; and having carefully examined and consid-
ered the papers and evidence produced on the hearing of the
said claim; and having conferred with the said commissioners
thereon, hereby reports that the schooner Hermosaj Ghattin,
master, bound from Richmond, in Virginia, to New Grleans,
having thirty-eight slaves on board belonging to H. N. Temple-
man, was wrecked on the 19th Gctober 1840 on the Spanish
key Abaco.
^' Wreckers came alongside and took off the captain and crew
and the thirty eight slaves, and, contrary to the wishes of the
master of the Hermosa^ who urged the captain of the wrecker
to conduct the crew, passengers, and slaves to a port in the
United States, they were taken to Nassau, New Providence,
where Captain Chattin carefully abstained from causing or
permitting said slaves to be landed, or to be put in communi-
cation with any person on shore, while he proceeded to consult
with the American consul, and to make arrangements for pro-
curing a vessel to take the crew and passengers and the slaves
to some port in the United States.
*' While the vessel in which they were brought to Nassau
was lying at a distance from the wharves in the harbor, cer-
tain magistrates wearing uniform, who stated themselves to be
officers of the British Government, and acting under the orders
of the civil and military authorities of the island, supported by
soldiery wearing the British uniform, and carrying muskets and
biiyouets, took forcible possession of said vessel, and the slaves
were transported in boats from said vessel to the shore, and
thence, under guard of a file of soldiers, marched to the office
of said magistrates, where after some judicial proceedings,
they were set free, against the urgent remonstrances of the
master of the Hermosa and of the American consul.
^^ In this case there was no attempt to violate the municipal
laws of the British colonies. All that the master of the Her-
mosa required was that aid and assistance which was due from
one friendly nation to the citizens or subjects of another
friendly nation, engaged in a business lawful in their own
ooantry, and not con^ary to the law of nations.
MISCELLANEOUS (^ASES. 4375
*^ Making allowance, therefore, for a reasonable salvage to
the wrecikerH, had a pro|>er conduct on the part of the author-
ities at Nassau been observed, I award to the Louisiana State
Marine and Fire Insurance Company, and the New Orleans
Insurance Company (to which institutions this claim has been
transferred by H. N. Templeman), or their legal representa-
tives, the sum of sixteen thousand doUars, on the fifteenth
January 1885, viz, eight thousand dollars to each company."
HsiteA, umpire, case of the Hermotaf couveution between the United
States and Great Britain of February 8, 1853. (S. Ex. Doc. 103, 34 Cong.
1 sees. pp. 239-240.)
^^This case having been submitted to the
Caseof the^'CiMle.'* umpire for his decision, he hereby reports that
the claim has grown out of the following
circumstances:
^^The American brig Oreole^ Captain Ensor, sailed from
Hampton Roads, in the State of Virginia, on the 27th October
1841, having on board one hundred and thirty-five slaves,
bound for New Orleans. On the 7th of November, at 9 o'clock
in the evening, a portion of the slaves rose against the officers,
crew, and passengers, wounding severely the captain, the chief
mate, and two of the crew, and murdering one of the passen-
gers. The mutineers, having got complete possession of the
vessel, ordered the mate, under threat of instant death should
he disobey or deceive them, to steer for Nassau, in the island
of New Providence, where the brig arrived on the 9th of
November 1841.
^' The American consul was apprised of the situation of the
vessel and requested th^' governor to take measures to prevent
the escape of the slaves and to have the murderers secured.
The consul received reply from the governor stating that under
the circumstances he would comply with the request.
^^ The consul went on board the brig, placed the mate in
command in place of the disabled master, and found the slaves
all quiet.
'* About noon twenty African soldiers, with an African ser-
geant and corporal, commanded by a white officer, came on
board. Tlie officer was introduced by the consul to the mate
as commanding officer of the vessel.
'*The consul on returning to the shore was summoned to
attend the governor and council, who were in session, and who
informed the consul that they had come to the following de-
cision :
<<< 1st. That the courts of law have no jurisdiction over the
alleged offensea.
4376
INTERNATIONAL ARBITRATIONS.
'* * 2d. That as an iDformation had been lodged before the gov-
ernor charging that the crime of murder had been committed
on board said vessel while on the high seas, it was expedient
that the parties implicated in so grave a charge should Dot be
allowed to go at large, and that an investigation ought there
fore to be made into the charges, and examination taken on
oath; when, if it should appear that the original information
was correct, and that a murder had actually been committed,
that all parties implicated in such crime or other acts of vio-
lence should be detained here until reference could be made to
the Secretary of State to ascertain whether the parties should
be delivered over to the United States Government; if not,
how otherwise to dispose of them.
'^ ^3d. That as soon as such examinations should be taken,
all persons on board the Creole not implicated in any of the
ofl'ences alleged to have been committed on board that vessel
must be released from further restraint.'
" Then two magistrates were sent on board. The American
consul went also. The examination was commenced on Tues-
day the 9tli, and was continued on Wednesday the 10th, and
then postponed until Friday on account of the illness of Cap
tain Ensor. On Friday morning it was abruptly, and without
any explanation, terminjited.
"On the same day a large number of boats assembled near
the Creole, tilled with colored persons armed with bludgeons.
They were under the immediate command of the pilot who took
the vessel into the port, who was an officer of* the government,
and a colored man. A sloop or larger launch was also towed
from the shore and anchored near the brig. The sloop was
tilled with men armed with clubs, and clubs were passed from
her to the persons in the boats. A vast concourse of i)eople
were collected on shore opposite the brig.
'^ During the whole time the officers of the government were
on board they encouraged the insubordination of the slaves.
**The Americans in port determined to unite and furnish
the necessary aid to forward the vessel and negroes to New
Orleans. The consul and the officers and crews of two other
American vessels had, in fact, united with the officers, men,
and passengers of the Creole to effect this. They were to con-
duct her tirst to Indiau Key, Florida, where there was a ves-
sel of war of the United States.
" On Friday morning the consul was informed that attempts
MISCELLANBOUS CA8B8. 4377
would be made to liberate the slaves by force, and from the
mate he received information of the threatening state of things.
The result was that the attorney-general and other officers went
on board the Creole. The slaves identified as on board the vessel
concerned in the mutiny were sent on shore, and the residue
of tlie slaves were called on deck by direction of the attorney-
general, who addressed them in the following terms: ^My
friends/ or ^my men, you have been detained a short time on
board the Creole for the purpose of ascertaining what individ-
nals were concerned in the murder. They have been identified
and will be detained. The rest of you are free and at liberty
to go on shore and wherever you please.'
*^The liberated slaves, assisted by the magistrates, were
then taken on board the boats, and when landed were con-
ducted by a vast assemblage to the superintendent of police,
by whom their names were registered. They were thus forci-
bly taken from the custody of the master of the Creole and lost
to the claimants.
^^I need not refer to authorities to show that slavery, how-
ever odious and contrary to the principles of justice and human-
ity, may be established by law in any country; and, having
been so established in many countries, it can not be contrary
to the law of nations.
" The Creole was on a voyage, sanctioned and protected by
the laws of the United States, and by the law of nations. Her
right to navigate the ocean could not be questioned, and as
growing out of that right, the right to seek shelter or enter the
ports of a friendly power in case of distress or any unavoidable
necessity.
*^A vessel navigating the ocean carries with her the laws of
her own country, so far as relates to the persons and property
on board, and to a certain extent retains those rights even in
the ports of the foreign nations she may visit. Now, this be-
ing the state of the law of nations, what were the duties of
the authorities at Nassau in regard to the Creole? It is sub-
mitted the mutineers could not be tried by the courts of that
islan<l, the crime having been committed on the high seas.
All that the authorities could lawfully do was to comply with
the request of the American consul, and keep the mutineers in
custody until a conveyance could be found for sending them to
the United States.
" The other slaves being perfectly quiet, and under the com-
mand of the captain and owners, and on board an American
4378 INTERNATIONAL ABBITBATIOK8.
ship, the authorities should have seen that they were protected
by the law of nations, their rights under which can not be
abrogated, or varied, either by the emancipation act or any
other act of the British Parliament.
'^ lUai^kstone, 4th volume, speaking of the law of nations,
states: 'Wlienever any question arises which is properly the
object of its jurisdiction, such law is here adopted in its fall
extent by the common law.'
*' The municipal law of England can not authorize a magis
trate to violate the law of nations by invading with an armed
force the vessel of a friendly nation that has committed no
oflfense, and forcibly dissolving the relations which by the laws
of this country the captain is bound to preserve and enforce ou
board.
" These rights, sanctioned by the law of nations — viz, the
right to navigate the ocean and to seek shelter in case of dis-
tress or other unavoidable circumstances, and to retain over
the ship, her Ciirgo, and passengers the laws of her own conn
try — must be respected by all nations, for no independent
nation wouhl submit to their violation.
'* Having read all the authorities referred to in the argu
lueiits on both sides, I have come to the conclusion that the
conduct of the authorities at Nassau was in violation of the
established law of nations, and that the claimants are justly
entitled to compensation for their losses. I therefore award
to the undermentioned parties, their assigns or legal repre-
sentativt'S, the sums set opposite their names, due on the 15tb
of .lanuaiy 1855.''
Hates, iHiipirt', cane of the Creole, coDveution between the United States
and Great Britain of February 8, 1853. (S. Ex. Doc. 103, 34 Cong. 1 eess.
l»p. 242-245.) The total amount awarded was $110,330.
The British ship YorJc, while stranded on the
Case of the "York." coast of North Carolina, having been driven
ashore by stress of weather while proceeding
in ballast from Valencia, Spain, to Lewes, Delaware, was de-
stroyed by two United States cruisers to prevent her from
falling into the possession of the enemy. An award was
unanimously made of $11,935 in gold, based on the value of
the wreck at the time of its destruction.
American and British Claims Commission, treaty of May 8, 1871, Article
XII. Hale*8 Keporti 51. See also Howard's Keport^ 148.
MISCELLANEOUS CASES. 4379
In 1854 claimant, by his agents, purchased a
^^ ® ' large lot of mares, mules, jacks, etc., and some
saddle horses in the States of Ooahuila and
Nueva Leon and ran them across the Kio Grandainto Texas in
violation both of the laws of Mexico and of the United States.
When they were some 9 miles on the Mexican side of the river,
in camp, an armed party of Mexican soldiers came up and cap-
tured all the stock, removed it to the other side of the river,
and delivered it to the Mexican authorities, by whom it was
sold. The commissioners, Mr. Wadsworth delivering the opin-
ion, held that the seizure of the property on the soil of the
United States and its removal to and sale in Mexico by officials
of that country was an injury to claimant for which he was enti-
tled to indemnity under the treaty, notwithstanding his own
bad conduct in evading the laws of Mexico.
George H, Giddinga ▼. Mexico, No. 61, coDTention of July 4, 1868, MS.
Op. n. 330.
By a royal proclamation of November 30,
Bightof 8«if.Daf6iiM: iggj^ occasioned by the case of the Trent, Her
CaM*. Britannic Majesty, referring to ** the customs
consolidation act, 1853,'' prohibited the expor-
tation from the United Kingdom of i^ gunpowder, saltpeter,
nitrate of soda, and brimstone," as articles ^^ capable of being
converted into or made useful in increasing the quantity of
military or naval stores."
By an ordinance of December 27, 1861, the governor- general
of India, referring to the foregoing order, forbade the expor-
tation of saltpeter ^^from any port of Her Mi^esty's territories
in India, except in a British vessel, bound either to the port of
London or to the port of Liverpool." By an ordinance of Jan-
uary 3, 1862, the restriction was modified so as to permit the
exportation of saltpeter from India in a British vessel bound
to any port of the United Kingdom; and it was ordered that
any saltpeter previously loaded on a vessel not coming within
the permission should be landed.
On December 27, 1861, there lay in the port of Calcutta three
American vessels — the ships Daring and Templar and the bark
Patmos. The Daringhad then taken on board a quantity of salt-
peter as part of her cargo, obtained a clearance therefor, and
had paid the export duty thereon. After that date she com-
pleted the taking in of the remainder of her cargo, consisting
of linseed, jute, etc., but including no saltpeter, and was com-
pletely laden on the 3d January 1862. The Templar had her
4880 INTEBNATIONAL ABBITBATION&
cari^o all on board, inclndiiig a quantity of saltpeter, ou tbe
27th December. The Patmoa ulso was folly ladeu, incladine
2,000 bags of saltpeter, od the 27th December.
The ordinaoces prohibiting the exportation of saltpeter
were revoked Febrnary 28, 1862. Meanwhile tbe three vessels
lay at Calcutta. lu each case the saltpeter was nt the bottom
of the hold, BO that its removal woald have required the land-
ing of tbe whole cargo; and the masters, believing that the
prohibition would be only temporary, deemed it expedient tc
remain in port instead of attempting to laud their cargoes and
depart. They respectively protested, however, before the
United States consnl at Calcutta against the ordinances and
the consequent detention of their vessels, claiming damages
for demurrage. These claims formed tbe subject of diplomatic
correspondence between the United States and Great Britain
in 18R2; and they were ultimately presented to the mixed com-
mission under Article XII, of the treaty between the two coou-
tries of May 8, 1871.
Mr. Hale, tiie agent of tbe United States,
B«partDfltr.HBle. made (Ueport, 32) the following summary ol
the cases :
"The provisions of the statute of 16th and 17tb "Victoria,
under which the royal proclamation was issue<i and upon which
the ordinances ot the governor-general were founded, are
recited in the royal proclamation above given. The provisions
of the convention between the United States and Great Brit^
ain of July 3, 1815, continued by the conventions of 20th Octo-
ber 1818 and of lith August 1827 and in force at the time ol
tbe acts in question, are as follows:
" ' Article III. Ilis Britannic Majesty agrees that the ves-
sels of the United States of America shall be admitted and
hospitably received at the principal settlements of the British
dominions in the East Indies, videlicet: Calcutta, Madras,
Bombay, and Prince of Wales Island; and that the citizens of
the said United States may freely carry on trade between the
said principal settlements and the said United States, in all
articles of which the importation and exportation, resjiectively,
to and from the said territoriei*, shall not be entirely prohibited ;
provided only, that it shall not be lawful for them, in any time
of war between the British Goveninu-nt and any state or power
whatever, to export from the said territories, without the spe-
cial permission of the British Government, any military stores
or naval stores, or rice. The citi:cens of the United States shall
pay for their vessels, when adnritteil, no higher or other duty
or charge than shall be payable on the vessels of the most
favored European nations, and they shall pay no higher or
MKCELtAWEOfrS cfAsES. 4381
other daties or charges on the importation or exportation of
the cargoes of the said vessels than shall be payal>1e on the
same articles when imported or exported in the vessels of the
most favored European nations.
" *But it is expressly agreed that the vessels of the United
States shall not carry any arti61es from the said principal set-
tlements to any port or place, except to some port or place in
the United States of America, where the same shall be unladen.
"^It is also understood that tlie permission granted by this
article is not to extend to allow the vessels of the United States
to carry on any part of the coasting trade of the said British
territories; but the vessels of the United States having, in the
first instance, proceeded to one of the said principal settle-
ments of the British dominions in the East Indies, and then
going with their original cargoes, or part thereof, from one of
the said principal settlements to another, shall not be consid-
ered as carrying on the coasting trade. The vessels of the
United States may also touch for refreshment, but not for com-
merce, in the course of their voyage to or from the British ter-
ritories in India, or to or from the dominions of the Emi>eror of
China, at the Cape of Good Hope, the island of St. Helena, or
such other places as may be in the possession of Great Britain
in the African or Indian seas; it being well understood that in
all that regards this article the citizens of the United States
shall be subject, in all rcspec^ts, to the laws and regulations of
the British Government from time to time established.'
Amm tf th "^^" ^^'® ^^^^^ ^^ ^^^' claimants it was con-
^^^J^ ^^ ® tended that, irrespective of treaty stipulations
^^ *' between the United States and Great Britain,
the proclamation and ordinances were in ettect an embargo on
saltpeter-laden vessels bound for non-British ports, at least
during the time it would take to unlade the saltpeter; that it
was a civil, as distinguished from a hostile, embargo, not
directed against vessels of the United States exclusively, but
as a husbanding of resonrces merely, though in anticipation
of probable hostilities, and thereby having some features of a
hostile embargo; that even in the case of a hostile embargo,
if war does not ensue, innocent sufferers have a just claim for
indemnity, recognized by international law and ])ractice; that
a fortiori there is always a just claim for indemnity by sufferers
in the case of a civil embargo; that the fact that the embargo
was justified by the municipal law of Great Britain did not
relieve that government from liability under international law ;
that the action of the American commander in the arrest of
the Tretit and the seizure and removal of the two passengers
named were not justified by his instructions, and were subse-
quently disavowed by his government, and tlierefore no inter-
national wrong was ever conunitted by the Ignited States; and
that therefore such action aftbrded no justification of meas-
ures by the British Government in anticipation of war, even if
the measures in question would have been justified by the
4382
INTERNATIONAL AUBITKATIONS.
emergency, if the acts of tlie officer liad been avowed by his
government; that if the royal proclamation and tlie ordinances
were not to be considered as constituting an embargo, but only
a matter of domestic and police regulation, they certainly con-
stituted a violation of the rights of friendly foreigners, and
involved liability for compensation; nnd that in the case of
the Daring^ the ordinance of the liTth December having clearly
given her the right to s^il with the cargo already loaded, this
])ermission, with the subsequent acts done and expense in-
curred by her owners on the faith thereof, in continuing to lade
their cargo on top of the saltpeter, in reliance on the ordinance,
constituted a contract, and entitled the vessel to the observ-
ance of that contract by the Indian authorities.
'* Under the treaty between Great Britain and the United
States, the claimants respectively contended that the right of
the vessels in question to sail with the saltpeter on board was
guaranteed by the terms of the treaty; that 'exportation* of
saltpeter *from the said territories' was not 'entirely pro-
hibited' by the terms of the ordinances, for such exportation
was allowed to England; that transportation from India to
England was an 'exportation from the said territories,' and
was so recognized by the terms of the proclamation itself, which
recited, 'it shall not be lawful for any i>ers(m to export saltpeter
from any port of Her Majesty's territories in India, except in
a British vessel bound either to the port of London or to the
X)ort of Liverpool;' that the acts in question were plainly not
'in time of war between the British Government and any
state or power whatever;' that the language of the treaty
providing 'that in all that regards this article, the citizens of
the United States shall be subject in all respects to the laws
and regulations of the British Government from time to time
established,' could not be construed so as to authorize the local
authorities to deny rights ex])rcssly stipulated for in the treaty,
and formed no bar to the right of the claimants to sail with
the saltprter on board their vessels, the same having been
lawfully taken on board.
"The claimants' counsel cited the Boedes Lust, 5 Rob. 246;
Beawes Mer. Law, L'76: U. S. Stats, at L., 381, reimbursing
sufferers from the Bordeaux embargo; Dana's Wheaton, p. 4,
§15; p. 373, § 21)3; 3d Phill. 42; Jloneyman arguendo^ in Au-
bert V, Gray, 3 B. and S. Q. B. 171); letter of Lord Clarendon
to Mr. Dallas, of May 15, 1856, Br. and Am. Dip. Cor.; (jardu.
Inst, of Int. Law, 546.
"llerMajesty'scounsel maintained that both
^"^^ta°' "* under international law, irrespective of treaty
stipulation, and under the treaty stipulations
between the United States and Great Britain, the proclama-
tion and ordinances in question were lawful and valid, and
involved no liability for compensation to parties injured by
their provisions; that they were general regulations, not di-
rected agaiw^t U\^ ^\\\\>^ ov cargoes of these claimants in par-
*'^.ular, nor aubievitVw^ XXie^ \A\\v^ <5\ \iv^\\\\svfe\^^ <^i \Xs^^ Vluited
MISCELLANEOUS CASEa 4383
» States to any discrimiuatioD or disadvantage not common to
all other foreign nations; that even British ships were sub-
jected to the same disadvantages and the right of exporting
saltpeter to the mother country reserved to them was a right
which never had belonged to the United States; that com-
mercial adventures of this character were, in the nature of
things, subject to any modification of law which might Hifect
the anticipated profits, and perhaps defeat them altogether;
that the ordinances did not constitute an embargo in any just
sense, whether hostile or civil; that they were municipal reg-
ulations of trade, not forbidden by any principle known to the
law of nations, and that, aside from the treaty between the
United States and Great Britain, they were clearly authorized
by international law; that a just interpretation of the third
article of the convention of 1^15 must hold it not to prohibit
the British Government from regulating the exportation of
products of the Indies, from time to time, as might be deemed
expedient, or in its discretion from temporarily prohibiting the
exportation of some or all of such products to any foreign
nation whatever, and that of the occasion of such prohibition
and its extent, every nation must of necessity be for itself the
sole judge; that the treaty permitting the trade between the
Indian ports and the United States in articles the exportation of
which ' shall not be entirely prohibited,' gave no right to those
citizens to export saltpeter at the time in question, the exporta-
tion of that article being by the terms of the ordinances entirely
prohibited; that the word * exportation' referred to foreign
commerce, and not t4) the transi)ortatiou from the Indies to the
home ports of Great Britain; that the reservation of the right
of transportation to such home i)orts was in no respect preju-
dicial to the commerce of the United States, they having no
right to participate in the trade between Indian ports and the
ports of (jreat Britain; that the treaty itself providing for
this trade also provided that the citizens of the United States
should be subject in all respects to tiie laws and regulations of
the British (Government, and thus expressly subjected them to
the operation of ordinances like those in (question authorized
by the statute upon which they were based; that the ordi
nances of 27th December and 3(1 January were just, caused by
an act of an armed vessel of the United States in violation of
international law, and afibrding a reasonable apprehension of
hostilities to ensue between G reat Britain and the United States ;
that in such case all means of protei^tion and self defense, not
in themselves at variance with the ordinary principles of jus-
tice, and impartially used, were permissible to every govern-
ment, and that this prerogative having been exercised bona fide
for the safety of the realm on a particular emergency by a pro-
hibition equally affecting native subjects and foreign merchants,
the latter have no ground upon principles of international right
or justice to require compensation for such an unavoidable dimi-
nution of their commercial profits."
4384
nrrSBMATIONAL ABBITBATI0N8.
])60idOIL
The commission disaUowed all the olaimsy
Mr. Frazer dissenting.
Mr. FraMz^i DiiMnt- Mr. Frazer read a dissenting opinion^ which,
ing Opinion. after reciting the facta, was as follows:
'' 1. In the absence of treaty stipalations relating to the subject, it is
claimed that the facts constitute a Just foundation for a claim.
"2. That the treaty of July 3,1816, was violated, and therefore there
arises a national liability for damages.
'' If the case is within the treaty of 1815, it is, of course, immaterial
to determine what should be our award in the absence of treaty stipula-
tiouH. By the conventiun of August 6, 1827, that of 1815 was continued
indetiuitely, terminable on one year's notice, which was never given.
This was before the statute 24 and 25 Vict., though I do not deem the fact
important.
*^ If by treaty the British Government contracted not to do that which
before it might lawfully and without liability have done, it can not after-
ward break its contract without a Just liability to answer for the con-
sequences.
*' Was there, then, a contract by treaty, by the terms of which Great
Britain engaged not to do the things complained off
''By the third article of the treaty of 1815, His Britannic Majesty agreed
that citizens of the United States might 'freely carry on trade between
Calcutta, Madras, Bombay, and Prince of Wales Island, and the United
States, in all articles of which the importation and exportation to and
from the said territorien shall not be entirely prohibited.' The 'said terri-
tories' can only mean Calcutta, Ma<lras, Bombay, and Prince of Wales
Island, for those only were the territories previously mentioned. To
carry goods from Liverpool, or elsewhere in the United Kingdom, to Cal-
cutta for sale, would, it can hardly be questioned, be an importation to
*8aid territorisa^ in the sense of the treaty; so, then, as long as the impor-
tation of a ^ven arti<'le from Liverpool to Calcutta was not prohibited,
it might also be imported from New York by citizens of the United States.
In short, American merchants by that article of the treaty acquired the
liberty to compete with British merchants in supplying the markets of
*8aid territories.^ This is the natural import of the language; and if these
claims arose out of similar interfercui'e with American importation% to Cal-
cutta, say the prohibition to unlatle an American cargo under a like ordi-
nance, proclaimed after tlie arrival of the vessel at Calcutta, I can scarcely
conceive that a demand for redress would be denied by Her Mi^esty's gov-
ernment. I think that in such a case the language of the treaty would be
deemed too plain to admit of construction. And I can not but think that
as to importatiofiH to 'said territories,' that language expresses the exact
intention of the high contracting parties.
''As to exportation 8 f it is not, I think, fairly susceptible of controversy
that the literal import of the language used concedes to American citi-
z«*n8 rights exactly coextensive with those which relate to importations.
If not to prohibit the carrying of an article from Liverpool to the market
of Calcutta is to allow that article to be imported to Calcutta, in the senae
of the treaty; then it seems to me plain that not to prohibit the carry-
ing of saltpeter from Calcutta to Liverpool is to allow saltpeter to be
MISCELLANEOUS CASES. 4385
exported from Caloatta. In other words, by the plainest language that
could possibly have been employed, the quoted words of the treaty con-
cede to the United States a right to export and import from or to ' those
territories' alike, unless either as to the specified articles shall be prohib-
ited entirely, which is not done if exports be allowed from Hhose terri-
tories,' or if imports be allowed to 'those territories/
''The question remains. Was the taking of saltpeter fh>m Calcutta to
Liverpool an exportation of that article from Calouita in the sense of the
treaty f
'' it is admitted in the intelligent argument of Her Mi^esty's counsel
that in some sense the carriage of an article from Calcutta, ' whether to a
port in the United Kingdom or to a foreign port, is an exportation/ not can
this be questioned philologically. The word itself includes the former as
well as the latter, whether reference be had to its strict sense or its popu-
lar use. For proof of this use, indeed, it is only necessary to refer to the
very ordinances c<miplained of in these cases, in both of which the word
is several times used in that very sense, and certainly without impropriety.
It is also used by Earl Russell in the same 8ense, in his correspondence
with Mr. Adams concerning these claims. It is also used in the statute
laws of both countries, as well to indicate the carrying of goods from dis-
tant colonies or possessions as from countries wholly foreign.
" So much for the mere words of the treaty. Looking only at the lan-
guage quoted, the conclusion would seem to be that Great Britain en-
gaged by the treaty to permit citizens of the United States to export from
Calcutta to the United States such articles us she should permit to be
exported to the United Kingdom or any other place; i. e., the exporta-
tion of which should not be ' entirely prohibited.' But the words of a treaty
must be construed with reference to their subject-matter, so as to forward
the intent of the high contracting parties, and not defeat it, and so as to
avoid absurd results.
"Now, the intent of the third article of the treaty of 1815 undoubtedly
was to give to the United States the liberty of direct trade with the places
mentioned in the East Indies ; so that Americans might purchase and sell
iheref and with their own ships transport goods to and from their own
country, Arom and to those places. The mischief sought to be remedied
was that the United States Government was previously obliged to supply
herself with the products of those places at second hand in the markets
<»f Great Britain, and could only exchange her products with them through
the same indirect channel.
''Now, it must be seen at once that if the British Government reserved
to itself the right asserted (continuing herself to trade there), then the
concession which seemed to be made was a mere delusion and snare to
American merchants, giving no right which Great Britain might not with-
draw at any moment with advantage to her own merchants at home. In
short, she could at will resume the eutire monopoly of the trade with her
East Indian possessions; for it must be borne in mind that the language
under consideration, by virtue of which it is contended that the ordi-
nances in question can be Justified, applies quite as well to all other com-
modities as to saltpeter, and to imports as well as to exports. A treaty
stipulation with such a meaning would be worse than an utter nullity.
4386 DfTBRNATIOMAL ABBTTRATIOKS.
"There are some otiwr oUiiMa fbnnd In this artiole of the tT«»ty whloh
need to be ooneidered. There ia the oI»nse nanol in oommeiciftl treatiea.
which makea citizeasof theUnlted States trading in those plaoes 'enbject
Id all respects to the laws and r^nlations of the British Goremment ttoia
time to time eatabliahed.' Of this it is, perhaps, anfflcient to saj that it
cao notlwauppoeed that snch a olanse IsareBerTBtlonofaiithorlty to pro-
hibit the very trade which it was the leading pnrpose of the artiole 1o
allow. Id the langnage of Earl BnsBell concerning tlie same cluaBo, in
the first article of the treat; (letter to Lord Lyons of December 17, 1862),
'tt does not mean that the principal engSKemeot itself may be nnlllfled, or
mny be rendered illiwory either in whole or in part ■ • • bnt merely
that obedioDOe is to be rendered b; foreign traders * * * to all the
laws and atatutea enacted ■ ■ ■ for the ordinary and legitimate pur-
posi« of internal government and administration. ' * ' 1 have to
observe (he adds) that it la a well-known maxim that treaties are to be
interpreted in good faith, and in such a manner that they may bare their
effect and not be rendered vagne or illnaory.' And Mr. Seward's reply
(letter to Lord Lyooa of Janaary ft, 1863) oontatns a virtual odmiaalon of
the correctPESS of the principle so well stated by Earl Rnssell.
"It may be added that it ia impossible lo perceive tlieforoeof thsargn-
ineut that a year's notice shonld be given to terminate the treaty, if It was
provided that it could be effectually nolliGed by one of the parties at will
by au act of legislation.
" Hut there remaina a conaideration of mnoh greater weight, as I think,
than those which have lieen alluded to above. Self-preservation and self-
defense are sacred riKhta of nations as well as of individuals, and nothing
in a treaty should he taken to have Impairi'd the rightuf a nation to make
prudent preparations for them by hnsbauding itsmeousof war, when that
event at^nia probable, nnlesa the terms of the stipulation will admitof no
other conatrnotiun.
"There ia a provision in the article nndet oonaideration which showa
clearly that the exigency of posalble war was distinctly io mind when the
treaty was concluded. Indeed, auch were the event* then existing in tin-
hlalory of both conn tricH Chat it would have beenremarkableif it had not
been. The provision is in tliose words :
" 'Provided only that it shall not be lawful for them (citizens of the
Uuited States), in any time of war between the Brttiah Government and
any etate or power whati^ver, to export irom the aaid territories, withont
the special permiaaion of the British Government, any military stof«s or
naval atoree, or rice.'
"This exception to the general liberty to trade conceded before is fVee
from all ambiguity. That it covers only the case of actual war, abowii
most clearly that it was not df emed important and was not intended ti>
make aoy recervHtion for the case of war merely apprebeuded. The .me
thing being expressed, all else ih excluded. Expreitio HxtiM Ml extlviio
alleriut. This maxim of interpretation is aensibleand saand,and I think
never was more applicable in ao,v rasi> than here.
" If I have correctly interproti^d tlie treaty, then It is of no oonaeqnence
whatever that the ordinances applied to all nationa alike. A apeoiflo
engagement definite in its terms ouu be fulfilled only by the performanoe
MISCELLANEOUS CASES. 4387
of it in all its sabstantiul parts. It is nofc to be confounded with an
en^^gement to extend only tlio privilegcH which shall be allowed to other
powers or to the most favored nation.
"These considerutious seem to nie to establish very clearly the validity
of these claims, and I am of opinion that damages should be awarded
accordingly."
George Iloughton, a Britisli merchant, was
Duty toEestoieProp- ^y^ jjjg ^^y frQ^ ^^i^^ Canary Islands to Madeira,
Ca^ti^^"*"^ in a Spanish vessel, wlien, on May 23, ISIO,
the vessel was seized and robbed by pirates,
most of the crew being put to death. Hougliton alleges that
he lost £1,500 in gold and silver by the robbery. Soon after-
ward the vessel was taken by a United States cruiser, and her
piratical crew were tried for piracy. The vessel herself was
sold, and part of the proceeds, together with half of what was
found on board at the time of the seizure, were paid into the
United States Treasury. Houghton claimed before the com-
mission under the convention between the UnitcHl States and
Great Britain of February 8, 1853, such just compensation
from the United States as the commissioners might deem it
right to award him, after deduction of proper salvage and
expenses. The following decision was rendered:
'*This case has been submitted to us by the claimants and
counsel as one entitled, as far as we can consider it, to our
sympathy and to such relief as may be granted within the
powers committed to us.
*' The prominent facts set forth in the memorial of the claim-
ant are clearly shown. The property of which he was divested
in no manner passed to those who deprived him of it, and its
capture by a government vessel of the United States did not
change the right of ownership, except to the extent of such
just claim of salvage as should be allowed on this account.
** On every princi])le of justice and equity, and, as we believe,
of sound international law, the claimant is entitled to remu-
neration to the extent named. It is to be regretted, however,
that application was not early made to sustain the claim by the
requisite proof before the proper tribunal appointed for this
j)urpose, but we do not consider this omission should preclude
him from all relief here.
"The right to recover in such case is not a mere matter of
clemency on our part. The obligation to make compensation
or restoration where property has been piratically seized on
the high seas has been recognized in the treaties between the
two governments, and their aid mutually pledged both to pun-
ish such oflFences and to restore such property,
5627— VOL. 4 73
4388 INTERNATIONAL ARBITRATIONS.
•* The twentieth article of the treaty of amity, cornmerce, and
navigation conchuled between the United Stiites and Great
Britain on the 19th of November 1794 provides that the gov-
ernments will exert themselves to bring to condign punish-
ment all persons concerned in piratical offences, and that 'all
8hi])S with the goods or merchandises taken by them and
brought into the port of either of the said parties shall be seized,
as far as they can be discovered, and shall be restored to the
owners, or their factors or agents, duly deputed and author-
ized in writing by them (proper evidence being first given in
the court of admiralty for proving the property), even in case
such effects should have passed into other hands by sale, if it
be proved that the buyers knew or had reason to suspect that
they had been piratically taken.' (1 Laws of the United States,
ed. 1815, p. 218.)
" This provision contemplates the seasonable application and
proper proof of ownership to be filed in the court of admiralty
to secure such claim. The justice of it is, however, acknowl-
edged and we fei»l ourselves em]>owered to go behind the mere
form of relief, and grant some compensation for the loss in-
curred, and we therefore allow the claim, deducting such rea-
sonable expenses and salvage as is established by the laws of
the United Statt^s."
Upham, commissioner, delivering the opinion of the commission, con-
vention between the United States and Groat Britain of Febmary 8, 189<i.
(S. Ex. Doc. 103, 34 Cong. 1 sess. p. 162.) An award was mado in favor of
Houghton for $2,500.
The Albion^ a British vessel, sailed from
Trading and Cutting London with a cargo of merchandise to trade
..V ^.^' '^°^ with the Indians on the northwest coast of
witnout License.
America, designing to return with a load of
spars for the British navy. She had a license from the British
Government to engage in trade with the Indians, provided she
did not deal in furs, and to cut timber within the British ter-
ritories on that coast. She had .also a license from the Hud-
son's Bay Company to cut timber, on certain specified terms,
on Vancouvers Island, and the master of the vessel was
authorized to arrange for and cut timber on the American side
of the straits, opposite the island, if he could obtain authority
for that purpose.
The vessel arrived out in 1850 at Vancouver's Island ; and,
not being able to obtain timber conveniently by arrangement
with the Hudson's Bay Company, proceeded to the American
coast in Oregon Territory, and, finding no person to contract
th, commenced to trade with the Indians and to cut and fell
MISCELLANEOUS CASES. 4389
timber there. Information was communicated to Astoria of
her proceedings, and Mr. Adair, the collector of that port,
ordered her seizure for entering the United States territory,
felling timber, and trading with the Indians in violation of
law. She was seized in April 1850 at Dungeness, having cut
forty two spars, from sixty to ninety-six feet in length, and
from eighteen to twenty-six inches square at the butt, part of
which were on board the vessel; the others were lying by her
side. The officers reported that she had some clothing, hard-
ware, blankets, etc., on board, but the larger part of her cargo
had been sold to Indians or settlers. The vessel was libeled
and condemned, and was sold in the autumn of 185().
After the seizure a petition was presented at Washington
beseeching the clemency of the United States so far as it
might be extended, and on January 11, 1851, Mr. Corwin, the
Secretary of the Treasury, gave conditional instructions to
the prosecuting officer of the government " to release the Al-
bion in case there had been no legal condemnation of the ves-
sel at the date on which lie should receive the instructions of
the Department, and on payment of the costs attending the
seizure."
The vessel had been condemned and sold some two months
prior to the date of these instructions, so that they could not
be carried out.
A claim in behalf of the owners was preferred before the
commission under the convention between the United States
and Great Britain of February 8, 1853. The commissioners
concurred in thinking that as the country was remote and un-
settled and the government there newly established and little
known, and as the wrong done was slight in comparison with
the penalty inflicted, it was proper to (;arry out the measure of
clemency which the Government of the United States had
originally designed, and to place the claimant in the same
situation as he would have occupied if the instructions of the
Secretsiry of the Treasury had been received in time. Bates,
the umpire, " awarded 820,000 on account of the hardship of
the case and for the reason that the remoteness of the Terri-
tory was such as tc prevent the clemency intended by the
government seasonably reaching them."
CommiMion under the conveutioTi between tlie Unite<l States and Great
Britaia of February 8, 1853. (S. Kx. Doo. 103, 34 Cong. 1 eese. 376-381.)
1 1
I
4390 INTERNATIONAL ARBITRATIONS.
•
"The umpire appointed agreeably to the
** ^ CbST' ^ * provisions of the convention entered into
between Great Britain and the United States
on the 8th of February 1853 for the adjustment of claims by
a mixed commission having been duly notified by the com-
missioners under the said convention that they had been unable
to agree upon the decision to be given with reference to the
claim of the Hon. James Crook, owner of the schooner Lord
Xehfon, against the Government of tbe United States, and
having carefully examined and considered the papers and evi-
dence produced on the bearing of the said claim, and having
conferred with the said commissioners thereon, hereby reports
that the schooner Lord Nelson was captured on the 5th June
1812, thirteen days before the declaration of war, by the United
States brig Oneidaj Captain Woolsey, on Lake Ontario, for an
alleged breach of the embargo laws; the vessel was taken to
Sackett's Harbor, where, after war was declared, the schooner
and cargo were condemned and the proceeds paid into court.
When peace was made the owners of the Lord Nelson and cargo
claimed their property as captured in time of peace, and pro-
ceedings were permitted in the court of the United States
and a decree passed ordering the proceeds of the vessel and
cargo, amounting to $4,971, to be paid over to the claimant.<^,
when it was found the officer of the court whose business it
was to take care of the money had absconded, leaving no assets.
A petition was afterwards presented to the President of the
United States, who pressed this claim on the attention of Con-
gress, but no appropriation was made.
"The period when the transaction took place which is the
foundjition of this claim places it without the jurisdiction of
this commission.
" No compensation can, therefore, be awarded to the owners
of the Lord Nelson^
Bates, umpire, December 14, 1854, commission iiuder the convention
between the United States and Great Britain of Februarys, 1853. (M88.,
Dept. of State.)
By Article XXXIX. of the treaty of friend-
Administration of siiip^ Commerce, and ^Navigation between the
Eatateti: Treaty u^^ted States and Peru of July 2G, 1851/ the
Qaestion. ^7 7
high contracting parties agreed 'Hhat, in the
absence of the legal heirs or representatives, the consuls or
' This treaty waa terminated on notice given in accordanoe with its pro*
yfsio&B in 1863.
MISCELLANEOUS CASES. 4391
vice-consuls of either party shall be ex officio the executors
or administrators of the citizens of their nation who may die
within their consular jurisdiction, or of their countrymen dying
at sea, whose property may be brought within their jurisdic-
tion.'' Under this provision a claim against the United States
arose in 1857. It finally came before the mixed commissioners
under the convention between the United States and Pern of
January 12, 1863. The four commissioners rendered the fol-
lowing unanimous opinion and award:
" In the month of May 1857 the Peruvian citizen Juan del
Carmen Vergil, returning from New York to the Pacific, died
on board the steamer Empire City. The agents of the company
to which that steamer belonged placed his personal efi'ects in
the hands of the ^public administrator of the city of Kew York.'
" The minister of Peru in the United States, in July of the
same year, represented to the Secretary of State that the Peru-
vian consul in the same city had made proi)er representation
to entitle him to the charge of these effects under existing
treaty stipulations, but that, failing to secure the rights therein
guaranteed to him, it was necessary to interpose diplomatic
offices.
<<The Secretary of State immediately instmcted the law
officer of the Government of the United States in the city of
Xew York ^ to take such steps as would secure compliance with
the provisions of the treaty.'
^' The conflicting claims of the public <administrator and of the
consul of Peru appear to have been heard before the surro-
gate's court of New York at difl'erent times up to the 2nd De-
cember 1858, after which no record is found of further judicial
investigation, although it continued to be the subject of diplo-
matic correspondence up to December 1862.
'* When the attention of the Secretary of State (Mr, Cass)
was first invited to this case, no objection was presented to the
views expressed by Mr. Osma in reference to the Peruvian con-
sul's right to take possession of Vergil's property under the
treaty of 26th July 1851 ; so far from it, it will have been observed
that prompt measures were taken to secure the observance of
the stipulations of the 39th article of that treaty.
"When it had become evident that the proceedings were un-
successful, the question was referred to the Attorney-General
of the United States 'for his opinion as to the requisite meas-
ures to be pursued in order to give effect to the stipulations of
the treaty.'
^'That officer declared that the detaining of the goods of the
deceased from the Peruvian consul was unlawful and a wrong
which may justly be complained of. He thought, however,
that the Peruvian consul and minister were in fiftult in endeav-
oring to obtain 'redress where there is no authority to furnish
it,' and he added that the judicial authorities would have given
them this justice 'for the asking.'
I
4392 INTERNATIONAL ARBITRATIONS.
'^ Dismissing any further question upon tbe principles in-
volved in tliis claim, in regard to which there is no disagree-
ment among the commissioners, it remains only to arrive at a
just meiisure of the value of VergiPs effects as they were de-
livered to the public administrator and claimed by the consul
of Peru.
"Consul Casado wrote to the Peruvian minister on 9 Octo
ber 1858, that Vergil had ' some jewelry and two thousand
dollars, together with some bales of merchandise, the value of
which he did not know.' « • • The official record, trans-
mitted by the district attorney of the United States in New
York to the Secretary of State on the 13th December last,
gives a precise memorandum of the accounts of the public
administrator in reference to Vergil's effects. From this it
appears that he charged himself with cash found in Vergil's
trunk, $101. Add to which the appraised value of his other
effects, which was $347.96, making a total of $448.96.
** Having discovered in theexp^iente presented in this case
on the part of Peru the name of Messrs. Templemann & Berg-
mann, of Lima, as gentlemen having business transactions and
correspondence with Vergil, Mr. Bergmann of that firm was
invited to appear before the commission and communicate any
information he might have upon the subject of Vergil's property.
The papers and statements presented by this intelligent and, as
is known to the mercantile community here, upright gentleman
do not definitely determine the actual value of Mr. VergiTs
property at the time of his death. But they are sufficiently
conclusive to warrant the belief that the detention of Vergil's
effects by the public administrator of New York worked dam-
ages and losses to his estate which are not covered by the value
of his property as appraised added to the money found in his
possession.
" Taking into consideration the following elements, viz, the
money, the effects of which Vergil died possessed, and the
damages actually resulting from the embarrassment to which
his property was unjustly subjected, it is believed that nine
hundred dollars is a reasonable measure of redress in the case.
The commission therefore award to the legal representatives
of Juan del Carmen Vergil nine hundred dollars with interest
at 6 per cent for five years, amounting in the whole to eleven
hundred and seventy dollars in the silver money of the Uniteil
States or its equivalent."
*'The expediente sets forth in substance —
Claim for a Gratuity. "That in 1812 Alexander Scott, a citizen of
the United States, residing in Washington,
having been appointed a political agent by President Madison
to proceed to Venezuela, then at war with Spain for independ-
ence, to look after the commercial and other interests of the
Uuited States in that quarter, delayed his departure from some
MISCELLANEOUS OASES. 4393
time in March till late in May, in order to secure the aid of bis
country toward relieving tbe distress and suffering of the
])eopIe of Caracas and vicinity, caused by the then recent dis-
astrous earthquake in that part of South America; that be
^obtained its consent and authority for purchasing and trans-
l)orting' fifty thousand dollars' worth of provisions 'to the city
of Caracas for the relief and sustenance of the suffering in-
habitants;' that the ])rovisions (which arrived in June and
July) were gratefully received by Venezuela ' with many flat-
tering demonstrations of respect and gratitude toward' Mr.
Scott; that owing to heavy personal expenses incurred during
and in consequence of this service (which continued till Janu-
jiry, 1813), he was reduced from affluence to straitened circum-
stances, lie died in 1839. Elizabeth B. Scott, his widow, who
had accompanied him and shared the labor and privations of
the undertaking, in 1855 sent her memorial, embodying these
statements substantially, to the Venezuelan Government
through the American legation at Caracas, askiug, to use her
own language, ^at the hands of a high-minded and honorable
country such a return of reciprocal kindness as they may think
tit to bestow in view of the sacrifices made.'
*' No sum was named either of the expenses or losses incur-
red or of indemnity desired. Afterwards letters from time to
time were forwarded in her behalf through said legation to
that government, in one of which $25,000 were suggested as a
proper sum to be paid for the services rendered. The letters,
while depicting in strong colors the great benefits to Venezuela
of Mr. Scott's mission, and the needs of the x)etitioner, claimed
as a consequence from his sacrifices for that country, disclose
no new material fact.
"This claim was presented to the former commission by the
American minister at Caracas May 14, 1868. Th.it was the
first time the United States Government or its agency took or
was asked to take cognizance of it further than to forward the
matter as above stated.
"To 'this claim' Venezuela by her counsel demurs, 'upon
the ground that it is based entirely on the supposed right to
an exercise of gratitude by Venezuela, and does not allege any
breach of contract or wrong cognizable by a tribunal of jus-
tice, this without admitting the claim of special gratitude.'
"As we understand it, a 'claim' within the meaning of the
treaty implies a right on the one hand and an obligation on the
4394 INTERNATIONAL ARBITRATIONS.
other. It has refercDce tx) some alleged wrongful conduct of
the govornuient upon which it is made. That conduct may
have been active or passive; the government may have done
what it ought not to have done, or refused or neglected to do
what it ought to have done in respect to the subjectinatter of
the claim. And injury or damage must be alleged to have
resulted from that conduct to the claimant under circumstances
giving him the right under the treaty through his own govern-
ment to demand, and imposing on the delinquent government
the obligation to allow indemnity therefor.
"This claim is not of that character. No wrongful conduct
is or can be imputed to Venezuela in respect to its subject-
matter. All she did was thankfully to receive a gift of pro-
visions sent by the Government of the United States to her
l)eople in distress. The claim, if otherwise good on the face
of the papers, would be obnoxious to an objection for delay
in presentation for reasons stated in No. 30. The demurrer
will be sustained and the case dismissed.
"It may be worth while to add a few facts about this case
obtained from the public records. Having been commissioned
in 1811 to go to Venezuela as agent for the Government of
the United States, Mr. Scott started in March, 1812, and got
as far as Baltimore, where he found there were no vessels
going to Venezuela because of tlie then recent embargo. While
thus detained in Baltimore, Congress passed the act of May
8, 1812, <for the relief of citizens of Venezuela,' authorizing
the President to purchase $50,000 worth of provisions and
*to tender the same in the name of the Government of the
United States to that of Venezuela for the relief of the citizens
who have suflered by the. late earthquake.' He was directe<l
by President Madison to proceed to that country in one of the
vessels carrying the provisions and aid in their distribution.
He was paid by the United States, as its agent, for his services,
including $700 paid him while detained in Baltimore, $4.11"),
and thereafter employed in its service."
Little, commissioner, for the commission, Elizabeth B, Scott v, rvnezutlu
No. 12, United States and Venezuela Claims Commisvsion, convention of
December 5, 18S5.
The principle of this case was riteil and affirmed by the commission in
the cas<> of Margaret Watson de Clark r, Vene^uelaj No. 19, Andrade, com-
missioner, delivering the following opinion:
"It aj^pears that Margaret Clark, of the city of Baltimore, widow of
Captain John Clark, who spent a considerable portion of his life and in
MISCELLANEOUS CASES. 4395
1847 dieil in the naval service of Venezuela, had been 'conceded' a pen-
sion of $20 per month by that government on ncconnt of such service.
This i>en8ion was regularly paid up to May 31, 1856, to her, and thereafter
to March 1, 1858, to her authorized agent, one Seth Driggs, to wit: $419.40
in tinco hiUetea de deuda antitjua de Tesoreria sin intereSf which ho claimed to
have lost. She died in said city November 4, 1863. The petition here was
filed before the former commission by said Driggs on behalf of her heirs
at law, citizens of the United States, claiming the pennion from May 31,
1856, till her death, with interest. There is no evidence before us that
this claim was ever presented to the Government of the United States or
to its legation at Caracas beyond the fact of its consideration by the
former commissioners and umpire; nor is there any evidence submitted
touching the merits of the claim.
'*The claim is not such as the treaty contemplates, and must be disal-
lowed on that ground (see No. 12), even if there were no lack of evidence
and no difficulty about due presentation.^'
'' In the case of Joseph W. Koach, No. 154,
LialiilityforCk>iiigioii. the claim was for the value of the brigantine
Maderia and her cargo, which was alleged to
have been, on the 3d October 1863, run into by the Clyde^ a
steamer transport owned by the CTnited States, and the vessel
and her cargo thereby sunk and totally lost. That the colli-
sion took place in the course of a lawful voyage of the Maderia
from the port of Saint John's, Porto Rico, to the port of New
York ; and that the Clyde was then upon a voyage for tlie Gov-
ernment of the United States, and under the charge of officers
of that Government. That the collision happened entirely
through the neglect and default of the officers of the Clyde.
The memorial claimed damages $14,009.50, besides interest.
The proofs filed sustained the allegations in the memorial as
to the loss of the vessel and cargo by the default of the officers
of the Clyde, and showed that the matter had been investi-
gated by the claims commission of the War Department, and
a report was made by that commission in January 1867, assess-
ing the damages of the claimant at $11,373.98, besides inter-
est. The only question raised in the case was as to the amount
of damages to be allowed. The commission unanimously
awarded the claimant $14,081."
American and British Claims Commission^ treaty of May 8, 1871, Article
XII. Hale's Report, 159.
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